Kavala v. Turkey: European Court rebuked

Mehmet Osman Kavala has been detained on spurious charges since October 2017. On 10 December 2019, in the Kavala v Turkey judgment, the European Court of Human Rights (ECtHR) found multiple violations of his rights arising from the unfounded arrest, detention and prosecution of the prominent human rights defender. Unusually, the Court required his immediate release. Mr Kavala and others were subsequently acquitted by a Turkish court, and briefly released. However on 19 February 2020, in a striking rebuke to the authority of the European Court and to the rule of law more broadly, Mr Kavala was rearrested hours after finally gaining his freedom.

His case is emblematic of the crisis facing civil society and the rule of law in Turkey. Vague and broad-reaching laws governing support for terrorism, attacks on constitutional order and criminalising protest and dissent facilitate this type of judicial harassment and the suffocation of human rights defence in Turkey that his case represents. Our third party intervention before the European Court, on behalf of the Turkey Human Rights Litigation Support Project and PEN International, available here, outlines international law standards, including on the appropriate use of criminal law and free expression, and the duties to protect human rights defenders. A summary of the Court’s judgment is here.

On 3 December 2020, the latest resolution of the Committee of Ministers was handed down expressing “profound concern” and calling for Turkey to “assure the applicant’s immediate release.” The resolution is available here.

Garzón v Spain: UNHRC declares the case admissible

On 4 February 2020, the United Nations Human Rights Committee (UNHRC) informed Human Rights in Practice (HRiP) that the case lodged against Spain on behalf of former judge of the Spanish National Court, Baltasar Garzón, has been found admissible. Despite the state’s attempt to have the case dismissed and avoid proceeding to the merits stage, the Committee has given the Spanish government six months to address the allegations at the heart of this case - concerning the lack of fair trial (Article 14 ICCPR) and the unforeseeable application of criminal law (principle of legality, Article 15). The decision is a step towards addressing the notorious violation of judicial independence arising from the criminal investigation, prosecution and suspension of a judge for his interpretations of the law. See our short press statements on this decision in English and Spanish. Background information is available here.

Brief filed on Implementation of Abu Zubaydah v. Lithuania & Abu Zubaydah v. Poland

On 6 February 2020, HRiP presented “rule 9 submissions” to the Committee of Ministers (COM) of the Council of Europe on behalf of Guantanamo detainee and torture victim Abu Zubaydah.  The brief addresses serious shortcomings in the implementation of the European Court of Human Rights’ (ECtHR) judgments Abu Zubaydah v. Poland (2014) and Abu Zubaydah v. Lithuania (2018). It considers the states ‘action plans’ and developments and limitations in practice. It goes on to make detailed recommendations to each state and the COM on five essential areas of implementation: payment of damages; representations to bring the on-going egregious violations of the applicant’s rights to an end; investigation, truth and transparency; acknowledgment and apology; and measures to ensure non-repetition. The submissions are available here.

Letter to UNHRC in Garzón v Spain case urges action

HRiP wrote to the United Nations Human Rights Committee (UNHRC) today urging it to address the complaint which we lodged on behalf of former Spanish Judge, Baltasar Garzón, four years ago this month. The complaint submitted on 31 January 2016 concerns the arbitrary criminal investigation, prosecution and removal from office of a long-serving judge of Spain’s national court based exclusively on his judicial interpretations and application of the law. At a time when judicial independence is under attack globally, and its frailty subject to criticism in Spain, it is crucial that this notorious violation be recognised and redressed.

Dutch Supreme Court hands down historic judgment in Urgenda Case

On 20 December 2019,  the Dutch Supreme Court handed down a historic judgment in respect of states obligations to reduce carbon emissions and prevent climate change. The Court in the Hague  upheld the previous decisions in the Urgenda Climate Case, originally lodged in 2015, to the effect that the Dutch government’s human rights obligations required it to urgently and significantly reduce emissions. HRiP is honoured to have advised Urgenda in this case, which is likely to have significant repercussions for climate justice globally. 

The European Court of Human Rights delivers its judgment in the case of Kavala v Turkey

On 10 December 2019, the European Court of Human Rights (ECtHR) marked Human Rights Day by issuing a judgment of great potential significance in the case of Osman Kavala, a prominent human rights activist who has been detained for his alleged role in the 2013 Gezi Park Protests and the July 2016 coup attempt. In Kavala v Turkey, the Court found violations of Article 5(1) of the European Convention on Human Rights (Convention) on the lack of reasonable suspicion that the applicant had committed an offence; Article 5(4) of the Convention on the lack of a speedy judicial review on arbitrary detention; and Article 18 of the Convention, on the prohibition of restrictions of rights for unauthorised purposes, in conjunction with Article 5(1). See here for a detailed summary.

Kilic v. Turkey: ECtHR intervention lodged in case of the director of Amnesty International Turkey

On 16 August 2019 we filed a third party intervention before the European Court of Human Rights in the Kilic v Turkey case concerning the detention and prosecution of the head of Amnesty International Turkey. As in thousands of cases of human rights defenders in Turkey today, the putative basis is “terrorism” related charges. The brief addresses international standards relevant to the crisis facing human rights defenders in Turkey, including through abusive resort to criminal law in particular under the guise of counter-terrorism. Pleased to file on behalf of the Turkey Litigation Support Project, Human Rights Watch & the International Commission of Jurists.

The third party intervention can be accessed here.

Ayşe Çelik judgment - Turkish Constitutional Court

On 9 May 2019 the Turkish Constitutional Court issued its judgment in the case concerning the criminal conviction of Ayşe Çelik. Ayşe Çelik was prosecuted, convicted and sentenced to a custodial sentence for the broad-reaching and ill-defined crime of ‘disseminating propaganda’ in favour of a terrorist organisation (under Article 7/(2) of Law no. 3713 on the Fight Against Terrorism). Her purported offence consisted of comments made during a telephone call to a television show stating that in South East Turkey “unborn children, mothers and people are being killed” and that the media must “not keep silent”. The Constitutional Court ruled that the imprisonment of Ayşe Çelik constituted a violation of freedom of expression, requesting both a retrial and an end to the violation. A detailed analysis of the judgment can be found here.

Helen Duffy and Philip Leach presented a joint expert opinion to the Turkish Constitutional Court in September 2018, examining international law standards on the criminalisation and prosecution of crimes of expression. The opinion is available here.

Telek & Others v Turkey - Academic Freedom in Turkey

Academic freedom is under attack in Turkey. The Telek & Ors v Turkey case concerns the cancellation of passports of three academics who, together with more than two thousand others, supported a “Petition for Peace” and as a result were prosecuted, dismissed from academic institutions and banned from public service under the state of emergency. Despite the state of emergency having come to an end in July 2018, they are still deprived of a valid passport and unable to travel or to engage in academic work at home or abroad. Given the dearth of effective remedies in Turkey, they have no opportunity to challenge the lawfulness of the measures taken against them.

An intervention submitted today on behalf of the Turkey Litigation Support Project, Amnesty International, ARTICLE 19 and PEN International urges the Court to apply the convention in light of relevant international standards on academic freedom and on the fundamental nature of the right to remedy in situations of emergency. The brief, available here, finally presents information on the lack of legal remedies for the widespread practice of passport cancellations in Turkish courts. 

Kavala v Turkey – ECtHR intervention on Criminalisation of Human Rights Defenders in Turkey

A third party intervention addressing obligations towards human rights defenders was presented to the European Court of Human Rights in January 2019 in the case of Mehmet Osman Kavala v Turkey. The case concerns the arrest and continuing pre-trial detention of a highly regarded civil society leader, publisher and human rights defender. His ongoing arbitrary detention is emblematic of disturbing trends in Turkey, where in the wake of the failed coup attempt the number of human rights defenders subject to arbitrary detention and prosecution has burgeoned. The situation in Turkey unfolds in the regional and global context of a burgeoning crisis in respect of the protection of human rights defenders, with profound rule of law implications for rights protection, democratic participation and dissent. The case therefore raises issues of broader significance in Turkey, and elsewhere, in the context of closing civil society space, and expansive approaches to criminal law as a tool to this end.

The intervention, which was presented on behalf of the Turkey Human Rights Litigation Support Project and PEN International, addresses international law standards governing the nature of states’ obligations towards human rights defenders, and the principles of human rights and criminal law that constrain overly broad resort to criminal law. The intervention is available here.

Implementation of Rendition Judgments of the ECtHR; Committee of Ministers review

The implementation of the Abu Zubaydah v Lithuania and Abu Zubaydah v Poland judgments will be subject to review at the next session of the Committee of Ministers of the Council of Europe in March 2020. HRiP is preparing rule 9 submissions on the on-going lack of effective investigation and reparation in these cases.

Previous sessions: The Committee of Ministers issued a decision in December 2018 following its first review of the implementation of the Abu Zubaydah v. Lithuania judgment, which was finalised by the ECtHR in August 2018. The Committee’s decision expressed “deep concern that the applicant has been detained without charge since 2002, stripped of any safeguards against arbitrary detention, and continues to be exposed to such detention in Guantánamo Bay Naval Base in Cuba which may continue for the rest of his life.” The decision called on the Lithuanian authorities to:

“use all possible means to urgently obtain diplomatic assurances from the United States authorities that an end will be put to the applicant’s continued arbitrary detention”

“urgently seek guarantees that the applicant is not subject to further inhuman treatment as criticised by the European Court”

As regards other individual measures, the decision “underlined that the Lithuanian authorities should take without delay the necessary steps to reactivate and advance the pending criminal investigation to elucidate further the circumstances and conditions under which the applicant was brought into Lithuania, treated there and subsequently removed from the State, so as to enable the identification and, where appropriate, punishment of those responsible.”

In 16 January 2018 Lithuania’s Justice Minister notified that Lithuania had paid the damages award into an account for our client, and announced that law enforcement had “re-qualified the alleged crime to avoid a statute of limitations, and turned to the United States, asking for diplomatic assurances.”

It still remains to be seen what concrete steps will be taken towards effective investigation and prosecution, as required by the Judgment.  

Tunc v. Turkey: Hearing on Curfew-related Violations, European Court of Human Rights

On 12 November 2018 the ECtHR heard the case of Tunc v Turkey concerning violations of the right to life during curfews in South East Turkey. The applicants were the family members of Orhan Tunc who died from gunshot injuries when the authorities refused to allow ambulances to access the injured in parts of Cizne. The applicants made compelling arguments as to the ineffectiveness of the Turkish Constitutional Court in cases such as this, including the stark fact the Court has never decided a single case concerning right to life violations by security forces during the curfews.

Ayse Çelik case: Criminalising Freedom of Expression challenged in Turkish Constitutional Court

Several current cases address the clampdown on freedom of expression in Turkey. Ayşe Çelik’s case before the Turkish Constitutional Court is an extreme example. Ms Çelik was prosecuted, convicted and sentenced to a custodial sentence for the crime of disseminating ‘propaganda’ in favour of a terrorist organisation under Article 7/(2) of Anti-Terrorism Law no. 3713. Her alleged offence consisted of statements made concerning civilian casualties and suffering while calling in to a TV show. Helen Duffy and Philip Leach presented a joint expert opinion to the Court on behalf of the Turkish Litigation Support Project. The expert opinion examines international law standards relevant to the criminalisation and prosecution of crimes of expression.

The opinion is available here.

Abu Zubaydah Delisted

Torture victim and Guantanamo detainee Abu Zubaydah has been delisted by UN Security Council from its 1267 sanctions list.  The delisting followed a report by the UN Ombudsperson confirming that the man once touted by the US as “the number three in al-Qaeda” is not, in fact, a member of Al Qaeda. The delisting provides further confirmation of the misinformation that has been propagated concerning Zubaydah. It underscores the arbitrariness of his situation, where he has still had no real opportunity to challenge the lawfulness of his detention, no charges or trial, after almost 17 years in custody.  

Strategic Human Rights Litigation - new book is out!

Strategic human rights litigation (SHRL) is the staple area of HRP’s work. It is also a growing area of international practice around the globe, as advocates increasingly resort to national, regional and international courts and bodies 'strategically' to protect and advance human rights. A new book by Helen Duffy, written with the support of the Nuhanovic Foundation and many survivors, advocates and others, seeks to provide a framework for understanding SHRL and its contribution to change, as well as its limitations.  Several detailed case studies, drawn predominantly from the author's own experience, explore the role of SHRL in a range of contexts, such as in response to genocide in Guatemala, slavery in Niger, torture and detention in the 'war on terror' and land rights violations in Palestine. Ultimately, this book contributes to a discussion on how impact analysis might influence the development of more effective litigation strategies in the future.

The book is available here.

Report on the Impact of Litigation on Torture in Detention (Argentina, Kenya and Turkey)

Thanks to the Open Society Foundations and colleagues and researchers in Argentina, Turkey and Kenya, a new report explores the very different experiences of litigating torture in detention in these three states. The report is available here.

Abu Zubaydah v Lithuania: ECtHR judgment on CIA secret prisons

On 31 May 2018, the European Court of Human Rights (“the Court”) issued a unanimous judgment finding Lithuania legally responsible for violating multiple rights of our client, Abu Zubaydah, during his secret detention at a CIA-run “black site” on its soil. Lithuania’s objections, and attempts to have the ECtHR revisit the judgment, have been rejected. The judgment became final in September 2018 and is now before the Committee of Ministers of the Council of Europe for implementation.

Lithuania was the last European state to allow the CIA to operate such a centre on its territory from 2005 to 2006, as part of the notorious CIA-led extraordinary rendition and torture programme (“ERP”). As one of an estimated 57 states to have participated in the ERP, the judgment should be assessed for its relevance to other states as well as Lithuania. In a remarkably detailed judgment that pulls together the vast array of evidence of the rendition programme now in the public domain. The Court’s found that the totality of the evidence “established beyond reasonable doubt” that:

“[A] CIA detention facility, codenamed Detention Site Violet according to the 2014 US Senate Committee Report, was located in Lithuania…” and that Lithuania knew of the nature and purpose of the CIA activities on its territory yet cooperated in CIA rendition secret detention and interrogation operations on its territory. The Court noted that the rationale behind ERP was specifically to “remove persons from any legal protection” and described extraordinary rendition as “anathema to the rule of law”. The Court was unequivocal in its condemnation of the state. It found the following violations of the European Convention on Human Rights (ECHR):

-       torture and ill-treatment (Article 3).

-       arbitrary detention (Article 5) as “the whole purpose of the programme was to remove persons from any legal protection”. 

-       non-refoulement (Articles 3 and 5) through his transfer from Lithuania, despite foreseeable risk of further rendition and on-going arbitrary detention in Guantanamo.

-       the right to private and family life (Article 8).

-       the right to a remedy (Art 13)

-       the failure to carry out a prompt, thorough and effective investigation, to satisfy the right to truth and its obligations in respect of accountability.

Lithuanian must now pay reparation to Abu Zubaydah, make representations to the US concerning the on-going violations of his rights through his arbitrary detention at Guantanamo and carry out the effective thorough investigation that is long overdue.

The judgment is available here.

The hearing can be viewed here.

Abu Zubaydah’s Drawings of his Torture Published

Art and human rights. There can be little doubt that there are times when art can convey messages about human rights that legal briefs and judgments cannot.  Our client, Abu Zubaydah’s drawings were published the same week the European Court judgment in his favour was handed down. See his own depictions of his torture here:  https://www.propublica.org/article/abu-zubaydah-drawings-pictures-from-an-interrogation

Foreign Terrorist Fighters and Human Rights: OSCE Report and Panel

A report on the multiple human rights implications of the “foreign terrorist fighter” phenomenon and responses nationally and internationally, has been prepared under the auspices the OSCE. The report was informed by stakeholder meetings at ODIHR/OSCE offices during 2017 and will be discussed at the Human Dimension Implementation meeting during 2018.

The report is available here.

Summer Schools – 2018

The summer is a time when multiple summer schools and masters programmers are taught around the world. During 2018 Helen Duffy of HRiP participated in the following:

-        Summer schools @ the Grotius Centre: Grotius has become a centre for summer schools and I am pleased to teach on the one on IHL (IHL and human rights law), and International Criminal Law (Terror and Crime).

-        An intensive masters of laws course (Terrorism and Human Rights), taught biennially in Melbourne University.

-        The Asser Institute summer school on counter terrorism, brings students and practitioners from around the globe.

-        American University, Academy of Human Rights and IHL Summer School; summer course on International Justice.

- Lawyering in the Public Interest; pleased to deliver the keynote at this timely new initiative organised by the Asser Institute in the Hague.