Posts Tagged ‘infringement procedure’

Kavala ruling of European Court of Human Rights – infringement procedure against Turkey

July 27, 2022
Osman Kavala © 2017 Private
Osman Kavala © 2017 Private

Several sources (here HRW) reported on the European Court of Human Rights (ECtHR) handing down a landmark judgment (announced on July 11, 2022) against Turkey for its failure to carry out the court’s order to free the imprisoned human rights defender Osman Kavala. See: https://humanrightsdefenders.blog/2022/04/27/unexpected-in-its-harshness-kavala-gets-life-sentence-without-parole/

The court found in Kavala v. Türkiye, a case brought by the Council of Europe’s Committee of Ministers, that Turkey failed to fulfil its obligation under Article 46(1) of the European Convention on Human Rights to comply with its judgment issued on  December 10, 2019.  The judgment is an important step toward accountability for Turkey’s systemic disregard for the convention system and as recognition of the urgency of implementing the court’s order to release Kavala.

This is the only second time, after Mammadov v. Azerbaijan, that the ECtHR has ever conducted infringement proceedings and determined that a member state has not complied with a European Court judgment,” said Helen Duffy of the Turkey Litigation Support Project.

It is an acknowledgement of Turkey’s ever-deepening rule of law crisis, which has involved seriously undermining the Convention system and the escalating use of criminal law for political purposes.”

In its new judgment, the court held that “Türkiye has failed to fulfil its obligation under article 46§1 to abide by the Kavala v. Türkiye judgment of 10 December 2019.”

The European Court underlined that:

Its finding of a violation of Article 18 taken together with Article 5 in the Kavala judgment had vitiated any action resulting from the charges related to the Gezi Park events and the attempted coup. It is nonetheless clear that the domestic proceedings subsequent to the above judgment, which resulted first in an acquittal and then a conviction, have not made it possible to remedy the problems identified in the Kavala judgment (para. 172).

The Grand Chamber judgment addresses these practices of the Turkish authorities by stating that “the measures indicated by Türkiye do not permit it to conclude that the State Party acted in good faith,’ in a manner compatible with the ‘conclusions and spirit’ of the Kavala judgment, or in a way that would make practical and effective the protection of the Convention rights which the Court found to have been violated in that judgment” (para. 173).

Aisling Reidy, senior legal adviser at Human Rights Watch said: “As the European Court has now confirmed Turkey’s failure to execute the 2019 Kavala judgment, the Committee of Ministers needs urgently to take all feasible measures to ensure the judgement is respected and Kavala released“.

The Committee of Ministers is expected to resume its supervision process and take more robust steps to discharge its mandate of ensuring the necessary individual and general measures are taken by Turkey to implement the court’s ruling.

Now, it is up to the Committee of Ministers, which oversees the implementation of the ECtHR rulings, what measures to take against Turkey after the country failed to comply with the court’s ruling. This could lead to Turkey’s suspension from the Council of Europe. In anticipation, the Foreign Ministry of Turkey said they expected the Committee of Ministers “to act without bias and with common sense” in a statement.

https://www.hrw.org/news/2022/07/12/landmark-judgment-against-turkey-ignoring-european-ruling

Council of Europe starts infringement process against Turkey

February 3, 2022
Osman Kavala © 2017 Private
Osman Kavala © 2017 Private

The Council of Europe Committee of Ministers voted on 2 February, 2022 to begin infringement proceedings against Turkey. Human Rights Watch called it an important step to support human rights protection in Turkey and uphold the international human rights framework. The resolution concerns Turkey’s failure over the past two years to comply with the European Court of Human Rights’ judgment in which the Court ruled that Turkey should free human rights defender Osman Kavala and fully restore his rights. See also: https://humanrightsdefenders.blog/2022/01/18/kavala-saga-continues-turkish-court-keeps-philanthropist-in-prison/

The Committee of Ministers’ vote to pursue infringement proceedings against Turkey for its politically motivated, arbitrary detention of human rights defender Osman Kavala shows a resolve to uphold the international human rights law framework on which the Council of Europe is based,” said Aisling Reidy, senior legal adviser at Human Rights Watch. “The resolution sends a reminder to all Council of Europe member states that European Court of Human Rights judgments are binding, and it is an important acknowledgement of Turkey’s rule of law crisis.

The Committee voted to send the case of Kavala v Turkey back to the European Court of Human Rights for a legal opinion on whether Turkey has met its obligations to comply with the judgment. If the European Court confirms – as it is expected to do – that Turkey has failed to implement its judgment, the Committee of Ministers may then take additional measures against Turkey.

These could include ultimately suspending Turkey’s voting rights in the Council of Europe and could even jeopardize Turkey’s membership. Turkey is the second country in Council of Europe history to be subjected to the sanction process for breaching member states’ obligations to implement European Court of Human Rights judgments. (first time was in 2017 against Azerbaijan in the case of Ilgar Mammadov).

The Kavala judgment is legally binding, yet the Turkish authorities have snubbed the Strasbourg court and ignored the decisions of the Committee of Ministers, which represents the Council’s 47 member states, calling for his release and the full restoration of his rights. Ankara has already reacted as expexted: it has accused the Council of Europe of “interfering in an ongoing judicial process

The Turkish courts and prosecutors have engaged in a series of tactics to circumvent the authority of the European Court and the Council of Europe, using domestic court decisions to prolong Kavala’s detention and extend the life of baseless prosecutions. The courts have issued sham release orders, initiated multiple criminal proceedings against Kavala on the same facts, and separated and re-joined case files accusing him of bogus offenses.

In 2021, Turkey merged the proceedings against Kavala with an entirely separate and much older case against football fans and others charged with a demonstration during 2013 protests a few kilometers away from Istanbul’s Gezi Park.

Turkey’s international partners, in particular countries that supported the infringement vote, should make it clear that Turkey’s continued failure to implement the Court’s judgment and to release Osman Kavala would have consequences on their relations with Turkey. In particular, the European Union should tie its proposed “positive agenda” with Turkey to Kavala’s release and make respect for rights a prerequisite for opening talks on the Customs Union modernization that Turkey is seeking.

Turkey knows that the European Court’s judgments are binding but has chosen to defy its obligations and the rule of law,” Reidy said. “Through the infringement proceedings and engagement from other countries, that needs to change, and Turkey should free Osman Kavala immediately and restore all of his rights.

https://www.hrw.org/news/2022/02/02/turkey-council-europe-votes-infringement-process

https://www.hurriyetdailynews.com/turkey-slams-council-of-europe-for-intervening-in-ongoing-kavala-case-171229

Polish judges have become human rights defenders

April 8, 2019
Barbora Cernusakova (Amnesty International’s Poland researcher) posted in Euronews on 4 April 2019 a piece entitled “When Polish judges become human rights defenders”

“There is a danger when politics enters the judiciary,” warned Judge Sławomir Jęksa in his summing up of his decision to accept the appeal of a woman who had been charged for using offensive language at a rally. She had, he reasoned, not only been entitled to express herself in the way that she did, especially since she was expressing genuine concerns about the encroachment on human rights in Poland. Days after his ruling, Judge Jęksa found himself at the receiving end of just the sort of political interference of which he had warned. The Disciplinary Prosecutor started proceedings against him on the grounds that his ruling was an “expression of political opinions” and “an offence against the dignity of the office of the judge.”

Judge Jęksa does not have much faith in the disciplinary procedure which will take place in the Disciplinary Chamber of the Supreme Court. The Disciplinary Chamber is a special body whose members were chosen by a body formed of politicians from the governing party. He is just one of several judges facing similar pressures. More than a dozen judges have faced disciplinary proceedings since last autumn. These may result in sanctions, including their dismissal from office.

Some of the more outspoken judges who publicly expressed their opposition to the government’s interference with the judiciary have even received death threats…..

This is all happening in the context of a wider smear campaign against judges that have upheld decisions in defence of human rights that began in 2017. Judges are constantly portrayed as “enemies of the people” who “damage the interests of Poland.” Pro-government media and social media accounts have gone as far as invading their privacy by regularly publishing their personal information, including details about their sick leave and their trips abroad.

Despite this, judges in Poland continue to organise and collectively resist the pressures from the government. “For the first time in our careers we have to stand our ground and show we are not just civil servants, but the authority that protects legal order,” Judge Dorota Zabłudowska told me.

But the ongoing struggle over the independence of the judiciary in Poland is not only about them. It is a fight for human rights that ultimately affects everyone in the country and indeed in Europe. In a significant move yesterday, the European Commission launched an infringement procedure to protect judges in Poland from political control. …The chilling effect of the abuse of this already flawed disciplinary system is real and this has now been called out by the Commission. Member states should back this step and call on Poland in the General Affairs Council next week to end the harassment and intimidation of judges.

This decision draws an important line in the sand and makes clear that interfering with the independence of the judiciary cannot and will not be tolerated. Allowing one member state to operate outside the rule of law would be to allow the entire system to be contaminated…

See also: https://humanrightsdefenders.blog/2018/09/27/polish-ombudsman-adam-bodnar-winner-of-2018-rafto-award/

https://www.euronews.com/2019/04/04/when-polish-judges-become-human-rights-defenders-view