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

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

The Briefing focused on the following cases:

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

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

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


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


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

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

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

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

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

In 2023, there is still no remedy against removal:

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

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

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

  1. Removal of judge Baka through ad hominem legislation

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

  3. Election of new Kúria President through ad hominem legislation

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

  5. Possibility of impeaching the Kúria President without judicial remedy

  6. Overruling judicial decisions

The NGO provided comments on the Judicial Reform of 2023:

Hungary passed a judicial reform in May 2023

  • To fulfill undertakings towards the European Union

  • A possibility not taken to implement the Baka judgment

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

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

  • More guarantees against undue interference by court administration

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

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

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

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

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

The Chilling Effect

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

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

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

  • Aiming at creating a self-censorship.

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

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

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

  • Method: discrediting members of the NJC as judges

  • Aim: discouraging judges from speaking out

    Smear attacks continue even during the NJC elections.

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

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

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

  1. Continue examining the case under enhanced procedure

  2. Take into account the changed context of the execution

  3. Require legislative changes

    • to exclude political pressure through the Kúria President

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

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

  4. Require Hungarian authorities to refrain from

    • public critique of judicial decisions

    • legislative steps overruling judicial decisions

    • smear campaigns against judges

  5. Evaluate the domestic legislation regarding guarantees against undue interference

See slides for full briefing.

Relevant Documents

NGO Communications:

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

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

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

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

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

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

CM Decisions:

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

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

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

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

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

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

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

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

    • Mr. Selahattin Demirtaş must be released immediately.

Ramazan Demir outlined the Government’s arguments:

The Government’s Arguments

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

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

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

  • The necessary individual measures have been taken.

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

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

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

  • The witness statements:

    • Are contradictory, inconsistent and false,

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

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

Ongoing judicial harassment against the applicant:

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

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

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

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

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

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

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

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

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

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

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

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

See slides for full briefing.

Relevant Documents

Applicant Communications:

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

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

NGO Communications:

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

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

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

CM Decisions:

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

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

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

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

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

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

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

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

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

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

Summary of Action Plans/Reports:

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

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

  • Regarding general measures, the Action Report emphasized:

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

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

    • The investigations of attacks during previous marches are ongoing.

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

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

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

GYLA and EHRAC outlined the status of individual measures:

Individual Measures

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

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

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

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

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

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

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

  • Mikeladze and Others v Georgia (54217/16)

    • No investigative activity took place between 2015 to 2021.

    • Criminal charges were brought against two former police officers.

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

GYLA and EHRAC outlined developments pertinent to general measures:

General Measures: Zero-tolerance messages

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • The investigative units are not launching investigations.

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

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

  • The government has not established a specialized investigative unit.

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

Results of impunity

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

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

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

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

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

The National Human Rights Strategy and Action Plan

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

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

Individual measures

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

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

  • Authorities should grant victim status and adequate victim participation.

General measures

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

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

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

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

See slides for full briefing.

Relevant Documents:

NGO Communications:

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

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

NHRI Communications:

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

CM Decisions:

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

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

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

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

The Briefing focused on the following cases:


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

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

Positive changes:

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

Remaining gaps:

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

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

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

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

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

The Government’s communication, 26.6.2023:

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

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

In the respective infringement procedure the CJEU ruled that:

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

Summary removals to Serbia

Legislation:

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

Refusal to implement judgments:

  • R.N. v. Hungary 4.4.2023.

  • H.K. v. Hungary, 22.9.2022.

  • Shazad v. Hungary, 8.10.2021.

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

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

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

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

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

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

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

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

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

Recommendations to the Government of Hungary:

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

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

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

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

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

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

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

CM Decisions

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

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

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

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

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

  • Court awarded non-pecuniary damage

    Violations found by the Court

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

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

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

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

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

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

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

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

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

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

Substantive obligations under Article 2 ECHR: Coast Guard operations

Indicative cases

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

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

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

Key issues

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

  • Delay in search and rescue

  • Absence of video-recording of Coast Guard rescue operations

  • Absence of adequate search and rescue equipment in deployed vessels

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

Procedural obligations under Article 2 ECHR: Effectiveness of investigations

(Coast Guard responsibility investigated by Piraeus Naval Court Prosecutor)

Indicative cases (others concerning sea and land)

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

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

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

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

  • Pylos 14 Jun 2023 - Pending preliminary examination

Key issues

  • Preliminary interrogation & initial evidence collection by Coast Guard officials

  • Piraeus Naval Court Prosecutor not promptly intervened

  • Limited number of witness testimonies

  • Deficiencies in interpretation

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

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

Conclusions

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

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

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

  • Safi v. Greece should be transferred to enhanced supervision

Recommendations

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

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

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

    treatment and effective investigation of complaints.

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

    of people on life-rafts.

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

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

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

    language they understand.

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

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

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

Please see the slides for the full Briefing.

Relevant Documents

NGO Communications

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

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

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

Umo Ilinden and Others v. Bulgaria 

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

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

  • Persistent denial of the Macedonian identity at the national level

  • Fear that recognition will bring its spread

  • Contempt of “ethnic apostasy”

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

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

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

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

  • Proliferation of the Macedonian groups

  • Renouncing radicalism of demands

  • Persistent attempts to obtain recognition and to register associations

  • Attempts to use all available or imagined opportunities

  • Activism more pronounced among the senior age groups

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

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

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

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

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

Third phase: mixed reasons

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

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

    • Improper regulation of representation;

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

    • Lack of regulation of for-profit activities.

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

  • No Macedonian organisation registered in Bulgaria

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

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

  • Formal legal requirements at the last instance

  • At present:

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

    • 1 refusal to register pending before the HRC;

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

    • 1 registered organisation dissolved in 2020.

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

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

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

CM Decisions

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

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

McKerr Group v. the United Kingdom

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

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

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

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

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

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

    • Inquests, Civil Proceedings. 

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

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

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

Core elements of Bill:

  • Closing down existing ‘Package of Measures’ permanently

  • Amnesty: the ‘Conditional Immunities Scheme’

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

  • Abandonment of UK-Ireland Stormont House Agreement 2014

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

UK Ministers: Objectives of the Bill:

Secretary of State for Northern Ireland Brandon Lewis MP: 

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

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

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

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

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

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

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

Closure of Civil Litigation

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

Cases currently delivering significant truth recovery and reparations, examples:

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

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

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

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

Closure of Legacy Inquests

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

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

  • Stormont House Agreement would have left inquest system intact.

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

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

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

Legacy Inquests:

Northern Ireland’s ‘truth trials’

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

Majority of Inquests concerning State cases contradicting official truth: 

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

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

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

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

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

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

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

PSNI, Call in, Ombudsman Investigations:

In relation to pre-1998 conflict related cases:

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

  • No transitional arrangement, unlike SHA.

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

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

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

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

Conditional Immunities Scheme

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

  • Government Amendments leave low subjective threshold of immunity intact.

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

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

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

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

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

ICRIR Independence:

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

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

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

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

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

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

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

ICRIR: Effectiveness

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

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

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

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

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

Please see the slides for the full Briefing.

Relevant Documents

NGO Communications

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

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

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

NHRI Communications

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

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

CM Decisions

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

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

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

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

The Briefing focused on the following cases:

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

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

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

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

Oya Ataman v Turkey

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

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

Law No.2911 on Demonstrations and Public Meetings

  • Law No. 2911 allows local authorities to: 

    • impose unwarranted restrictions on the right of peaceful assembly;

    • impose blanket bans on all demonstrations and events; 

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

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

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

    Additional restrictions in the aftermath of state of emergency

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

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

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

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

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

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

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

Blanket and specific bans on demonstrations and events

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

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

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

Police interventions with excessive use of force

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

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

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

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

Criminalisation of peaceful protestors

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

    • Criminal sanctions under Law no 2911

    • Misdemeanour fines under Law no. 5326.

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

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

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

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

    • Prevention of Terrorism Act (Law no. 3713

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

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

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

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

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

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

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

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

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

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

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

Please see the slides for the full Briefing.

Relevant Documents:

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

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

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

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

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

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

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

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

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

  • consciously built up and boosted

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

    • joined by pro-government think tanks

    • discrediting members of the NJC as judges

    • questioning their independence 

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

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

  • address the issue of judicial independence holistically and comprehensively

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

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

Please see the slides for the full Briefing.

Relevant Documents:

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

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

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

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

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

The current situation in Bulgaria

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

  • 271 small group homes

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

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

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

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

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

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

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

Please see the slides for the full Briefing.

Relevant Documents:

NGO Communications

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

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

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

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

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

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

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

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

1.     Öner and Türk Group of Cases

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

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

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

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

  • Prolonged trials and violations of the right to fair trial

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2.     Nedim Şener Group of Cases

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

  • There has been no amendment, no progress

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

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

    • On 16 June 2022, 16 journalists arrested in Diyarbakır

    • On 29 October 2022, 9 journalists arrested in Ankara

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

3.     Altuğ Taner Akçam Group of Cases

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

Article 301 of the Turkish Penal Code

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

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

  • Continuous legal harassment of the Diyarbakır Bar Association

4.     Artun and Güvener Group of Cases

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

a.     Article 125 of the Turkish Penal Code: insulting

  • No amendment

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

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

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

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

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

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

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

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

5.     Işıkırık Group of Cases

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

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

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

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

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

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

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

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

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

  • Re-examine these groups of cases more frequently.

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

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

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

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

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

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

Please see the slides for the full Briefing.

Relevant Documents: