Recent Blogs on Litigation Developments

Here are some recent blogposts by Helen Duffy on important litigation developments on cases and issues at the core of HRiP’s work.

Kavala v Turkey: Committee of Ministers reiterates call for immediate release

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.

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” with the on-going refusal of Turkish authorities to implement the judgment, and calling for Turkey to “assure the applicant’s immediate release.” The resolution is available here.

The Kavala case is emblematic of the crisis facing civil society and the rule of law in Turkey. The next hearing in his case in Turkey will be on 18 December 2020.

Garzón c. España: Alegaciones finales del Comunicante al Comité de DDHH de las Naciones Unidas

13 de octubre de 2020

Baltasar Garzón c. España

Alegaciones finales del Comunicante al Comité de Derechos Humanos de las Naciones Unidas

En julio de 2020, el gobierno de España presentó su respuesta en el fondo a la comunicación iniciada por Baltasar Garzón ante el Comité de Derechos Humanos de las Naciones Unidas, en enero de 2016. En un preocupante desafío a la autoridad del Comité, el gobierno insinuó estar respondiendo “por cortesía”, no por obligación legal. Esta semana, hemos presentado la contestación del Juez Garzón a las alegaciones del gobierno, y hemos solicitado al Comité que tome una decisión al respecto.

El caso atañe a múltiples procesamientos penales contra un juez sobre la única base de las interpretaciones que hizo de la ley. En el caso Franquismo, el Juez Garzón fue acusado de ordenar diligencias de investigación con respecto a los crímenes de lesa humanidad cometidos en España durante el régimen franquista, fundamentándose en la inaplicabilidad de la amnistía y la prescripción de tales crímenes a la luz de los estándares internacionales de derechos humanos y de la jurisprudencia española. En el caso Gürtel, fue acusado, condenado e inhabilitado de su cargo durante 11 años por autorizar interceptaciones limitadas de las conversaciones que mantenían acusados en prisión provisional con sus abogados, habida cuenta de los indicios de participación criminal de estos últimos y garantizando el derecho a la defensa de las personas investigadas. Tal y como nuestro escrito deja claro, ambos casos afectaban a áreas del derecho español controvertidas y sujetas a diversas interpretaciones por parte de los tribunales. En ambos casos, sus decisiones fueron razonables y razonadas. Todas estas resoluciones se impugnaron, fueron examinadas en apelación y se revocaron. Sus interpretaciones no fueron ni mucho menos únicas, sino que habían sido adoptadas también por otros jueces en varias ocasiones (sin haber sufrido éstos, en ningún caso, las consecuencias infligidas en el Juez Garzón).

Desde que la comunicación se presentó, en enero de 2016, el gobierno ha tratado en repetidas ocasiones de que se archivara el caso, introduciendo objeciones a la admisibilidad para evitar lidiar con el fondo de la cuestión. Sus alegaciones sobre admisibilidad continuaron incluso después de que el Comité decidiera, en octubre de 2019, que el asunto era admisible. En efecto, el Comité consideró que las peticiones del Juez Garzón estaban “suficientemente sustanciadas” y que resultaban admisibles. Éstas incluían: la arbitrariedad inherente a procesar a un juez por sus interpretaciones de la ley, y vulneraciones al derecho a un juicio justo (bajo el artículo 14(1) del Pacto Internacional de Derechos Civiles y Políticos); la denegación del derecho de apelación (artículo 14(5) del Pacto), y la violación del principio de legalidad por una interpretación expansiva e imprevisible de la figura penal de la “prevaricación”, ya ambigua de por sí (artículo 15 del Pacto).

Lamentablemente, la contestación del gobierno evita reconocer, o siquiera responder, al núcleo de las violaciones. Insiste en explicar por qué las decisiones adoptadas por Garzón fueron “erróneas”, desde su perspectiva. El gobierno aún trata de justificar el hecho de acusar a un juez por la vía penal, por haber considerado que la Ley de Amnistía es inaplicable para crímenes tan atroces, a pesar de que considerar lo contrario hubiera puesto a España en conflicto con sus obligaciones internacionales bajo el Pacto de Derechos Civiles y Políticos. Incluso después de que otras autoridades judiciales llegaran a la misma conclusión a la que llegó el Juez Garzón respecto a la norma que rige la interceptación de comunicaciones, y de que la ley española fuera modificada posteriormente en línea con esta interpretación, el gobierno también insiste en justificar su procesamiento por adoptar esta decisión. No se molesta en argumentar que la cuestión a dirimir aquí no es si la interpretación del juez era o no correcta, sino si está suficientemente justificado el hecho de acusar y condenar a un juez por la vía penal por la interpretación que llevó a cabo del derecho.

Pese a la evidente vulneración de sus derechos, el comunicante no ha obtenido ningún remedio o satisfacción, diez años después. Más allá de las implicaciones que ello tiene sobre sus derechos, el escrito hace hincapié en el impacto que estos hechos tienen sobre la independencia judicial. En un momento en que el procesamiento de jueces se ha utilizado como arma represiva en varios puntos de Europa, y fuera de ella, la decisión del Comité tendrá una notable repercusión. Se ha instado al Comité esta semana para que, finalmente, declare que la persecución de un juez por el ejercicio de sus funciones judiciales constituye un uso flagrantemente arbitrario del derecho penal y una clara violación del Pacto, así como para que reafirme lo esencial que resulta proteger la independencia judicial como un requisito fundamental de todo Estado de Derecho y como garantía de efectividad del sistema de protección de derechos humanos en su conjunto.

Garzón v Spain: Final (Merits) Submissions filed refuting Govt. Observations

On 13 October 2020 HRiP filed final submissions on behalf of Baltasar Garzon in his long-running case against Spain before the UN Human Rights Committee.

In July 2020 the Spanish government submitted its response on the merits of the human rights complaint submitted by Garzón to the UN Human Rights Committee in January 2016. In a troubling rebuke to the Committee’s authority, the government purported to be answering as a matter of “courtesy,” not legal obligation. This week we presented Judge Garzon’s response to those governmental submissions and called on the Committee to bring the case to an end and to decide in favour of the applicant.

This remarkable and troubling case concerns multiple criminal prosecutions of a judge on the sole basis of his interpretations of the law. In the ‘Franquismo’ case, Judge Garzón was prosecuted for authorizing preliminary investigative steps into crimes against humanity perpetrated during Spain’s Franco regime, interpreting amnesty and prescription as inapplicable to such crimes in light of international human rights standards and Spanish jurisprudence. In the Gürtel case, he was prosecuted, convicted, and removed from office for 11 years for authorizing limited interceptions of prisoner-lawyer communications, provided there were indicators of criminality and measures taken to protect the rights of the defence. As our brief makes clear, both cases concerned areas where Spanish law was controversial, in flux, and subject to differing evaluations by different judges. In both cases, his decisions were reasoned and reasonable. All these decisions were challenged, appealed and overturned. His interpretations were far from unique, and similar judicial decisions had been taken by other judges (without the consequences inflicted on Judge Garzón). Despite this, he was subjected to criminal prosecution and punishment, with grave implications for his rights, and for judicial independence more broadly.

Since the case was filed in January 2016, the government has repeatedly sought to have this case dismissed, making multiple objections to admissibility to avoid having to deal with the substance of the claim.  Such admissibility arguments continued even after the UNHRC decided, in October 2019, that the case was admissible. The Committee found Garzón’s claims ‘sufficiently substantiated’ on multiple grounds. These included: the inherent arbitrariness of prosecuting a judge for controversial legal interpretations, and violations of fair trial (under art. 14(1) ICCPR), the denial of the right of appeal (Article 14(5)), and the violation of the principle of legality through the expansive and unforeseeable interpretation of the vague crime of “prevaricacion” (criminal malfeasance) (Article 15).

Regrettably the Spanish response still fails to acknowledge, or respond to, the heart of the violations. It continues to argue why judge Garzón’s decisions were ‘erroneous’ in its view. The government still purports to justify prosecuting a judge for finding an amnesty law inapplicable to egregious crimes, despite the fact that doing otherwise would bring Spain in conflict with its international obligations under the ICCPR. Even after multiple other sources reached the same interpretation as Garzón of the law governing interceptions, and the Spanish law subsequently changed in line with his approach, the government also still purports to justify prosecuting him for that interpretation too. It does not engage with the fact that the question is not whether a judge’s interpretation and evaluation was correct, but whether it can justify criminally prosecuting them for their decisions.

Despite the notorious violation of his rights, the applicant has had no remedy or recognition for over ten years later. Beyond the rights implications of the case for him, the brief underscores the even more profound impact of these facts on judicial independence. At a time when the prosecution of judges has reared its head as a repressive tool of choice in several corners of Europe, and beyond, the Committee’s decision will have particular resonance. It has been asked this week to finally recognize that prosecuting a judge for the exercise of judicial functions is a flagrantly arbitrary use of criminal law in violation of the ICCPR, and to reassert the fundamental nature of judicial independence as a pre-requisite of the rule of law the effectiveness of the entire system for the protection of human rights.

Climate Justice Judgment in the Irish Supreme Court

On the 31st of July 2020, the Irish Supreme found the Irish Government’s ‘National Mitigation Plan’ on Climate Change inconsistent with Irish Climate legislation. The judgment makes an important contribution to a growing body of national climate justice jurisprudence and to greater accountability in the field.

In Friends of the Environment CLG v. The Government of Ireland & The Attorney General, the Supreme Court first rejected government arguments that the case was not justiciable as carbon reductions plans were matters of policy. It then went on to find in favour of the applicants on the merits. The government’s Plan, which “envisages an increase, rather than a decrease, in emissions over the initial period of the Plan while, at the same time, committing to achieving the objective of zero net carbon emissions by 2050”, was found to lacked the necessary specificity to allow a reasonable and interested observer to know in sufficient detail how the government planned to meet those goals. As a result “the Plan should be quashed on the grounds of having failed to comply with its statutory mandate” (§.6.48).

While the decision is based on Irish legislation, and not readily transferable, the principles enshrined in the judgment requiring transparency, clarity and specificity as to concrete steps governments are taking to meet their carbon reduction goals, will resonate beyond Ireland. A number of important human rights arguments (under the Constitution and the European Convention on Human Rights) were advanced in the case, though ultimately not fully addressed in this case. In part this was as a result of findings concerning lack of standing under Irish law for the NGO applicants to bring certain types of human rights claims. It was also unnecessary to determine the substantive of human rights issues in this case given the Court’s findings on the inadequacy of the climate mitigation Plan and the lack of access to information, as noted above. The human rights arguments developed here may well be crucial in other contexts and cases. As Justice Clark concluded: “I would reserve the position of whether, and if in what form, constitutional rights and state obligations may be relevant in environmental litigation to a case in which those issues would prove crucial” (§.9.5).

HRiP was honoured to support this ground breaking case as part of its climate justice portfolio.

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.