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BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

WRITTEN SUBMISSIONS OF:

European Association of Lawyers for Democracy and World Human Rights (ELDH), European Democratic Lawyers (EDL), Association of Lawyers for Freedom (ÖHD), and Progressive Lawyers’ Association (ÇHD)

ON THE APPLICATIONS:

  1. No. 1712/21         K.K. v. Greece
  2. No. 2871/21         I.M. v. Greece,
  3. No. 3104/21         S.K. v. Greece,
  4. No. 3111/21         S.A. v. Greece,
  5. No. 3118/21         L.M. v. Greece,
  6. No. 4034/21         A.D. v. Greece,
  7. No. 4159/21         T.M. v. Greece,
  8. No. 4177/21         H.T. et al. v. Greece   
  9. No. 6923/21         S.G. v. Greece
  10. No. 10258/21       F.C. v. Greece
  11. No. 10692/21       O.M. v. Greece
  12. No. 12807/21       M.A. v. Greece
  13. No. 12926/21       M.E. v. Greece
  14. No. 13134/21       M.S. v. Greece
  15. No. 15067/21       G.R.J. v. Greece
  16. No. 15783/21       A.E. v. Greece
  17. No. 16802/21       S.R. v. Greece
  18. No. 16807/21       A.R. v. Greece
  19. No. 16811/21       M.H. v. Greece
  20. No. 16813/21       M.M. v. Greece
  21. No. 16815/21       M.H. v. Greece
  22. No. 16817/21       A.M. v. Greece
  23. No. 16818/21       A.A. v. Greece
  24. No. 16820/21       H.S. v. Greece
  25. No. 16822/21       S.R. v. Greece
  26. No. 16824/21       U.E. v. Greece
  27. No. 16825/21       W.A. v. Greece
  28. No. 16828/21       W.A. v. Greece
  29. No. 16831/21       S.H. v. Greece
  30. No. 22146/21 S.A.A. et al. v. Greece
  31. No. 24982/21       A.A.J. and H.J. v. Greece
  32. No. 42429/21  M.A. v. Greece

I. INTRODUCTION

  1. The following submissions are made by the European Association of Lawyers for Democracy and World Human Rights (ELDH), the European Democratic Lawyers (EDL), the Association of Lawyers for Freedom (ÖHD), and the Progressive Lawyers’ Association (ÇHD) (the “Interveners”) pursuant to the leave granted by of the European Court of Human Rights (the “Court” or the “ECtHR”) on 4 July 2022, in accordance with Rule 44(3) of the Rules of the Court. The 32 above mentioned applications concern the alleged refoulement of the Applicants from Greek territory (land and sea) to Turkey, without prior procedure (“pushbacks”).
  2. In addition to the aspects listed in the request for leave to intervene dated 23 February 2022, after taking the annexes into consideration, and in order to assist the Court effectively, the interveners will also provide the Court with written comments on the risks faced by citizens of Turkey who were pushed back from Greece to Turkey.
  3. Although the Respondent State in the aforementioned applications is Greece, the conditions a person will face upon being pushed back to Turkey are relevant in the present cases due to the expelling state’s obligation to take the treatment into account a person will be subjected to in the receiving state.[1]

II. THIRD COUNTRY NATIONALS

  • First and foremost, the Interveners want to highlight the fact that pushbacks are illegal actions carried out by state officials to prevent asylum seekers from getting access to the domestic asylum procedure. While a pushback is not based on a formal decision, the Respondent State is nevertheless bound to its legal obligations under domestic and international law. The Respondent State is bound to the principle of non-refoulement as soon as asylum seekers enter Greek territory, whether on land or at sea.[2]
  • If substantial grounds have been shown for believing that the removal or return to a third country would expose an asylum seeker[3] to treatment contrary to Article 3 – directly in that third country or indirectly, for example, through chain-refoulement – the Court has confirmed the responsibility of the Contracting State not to deport.[4] These duties also include the duty to consider the overall reception conditions for asylum seekers in the receiving state, and the duty to consider the respective person’s situation.[5]
  • Article 86(1) of the Greek Law 4636/2019 (“International Protection Act [IPA]”) defines the criteria for the application of the “Safe Third Country” (“STC”) concept. Even though the criteria are in general consistent with Article 38 EU Directive 2013/32 (“Asylum Procedure Directive”), a serious divergence arises. With IPA, Article 86(1)(f) an additional set of criteria was introduced concerning the relation of an asylum seeker with a “STC” by which a mere transit state, in combination with specific circumstances, can be deemed as “safe”.
  • While the Court so far has never questioned the “STC” concept as such, nor has it commented on whether a given third country was safe or not, the Court is sometimes – as given in the aforementioned applications – “obliged to scrutinise the use of the safe third-country concept against the benchmark of Article 3 and the prohibition of non-refoulement”.[6] In this context, the Court has stated in its case law that the deporting State “has a general procedural obligation to carry out a fair and thorough examination of the conditions in that third country”,[7] including “the accessibility and reliability of its asylum system”.[8] While it rests with the asylum seekers to substantiate their individual circumstances, the Contracting State’s authorities, however, are obliged to conduct an assessment “of the accessibility and functioning of the receiving country’s asylum system and the safeguards it affords in practice”[9] on their own motion. This obligation applies all the more if a general risk of a breach – for example, of Article 3 – in the receiving state is well known.[10]
  • Despite the fact that “Turkey has persistently raised concerns about alleged migrant arrival prevention measures (so-called ‘pushbacks’) enforced by the Greek authorities in the Aegean Sea”,[11] the survivors of these illegal actions from Greek state organs do not receive any protection in Turkey where they are deprived of their fundamental human rights and face a real and genuine fear of refoulement. As will be set out below, Turkey – with regards to its asylum system and its reception conditions – fails to meet the recognized requirements leading to a systematic violation of the rights of asylum seekers as set out in the Convention.

A. Insufficient Access to Protection in Turkey

  • According to the European Commission, the asylum legislation in Turkey is only partially aligned with the EU acquis. “The Law on Foreigners and International Protection maintains the reservation (geographical limitation) expressed in the New York Protocol of the 1951 Geneva Convention, according to which the vast majority of persons seeking international protection in Turkey cannot apply for fully-fledged refugee status but for ‘conditional refugee’ status and subsidiary protection only”.[12] In other words, anyone not originally from a European country is excluded from full refugee recognition. In effect, this legislation bars any citizen of a West Asian or African country from the protection as a refugee under the Geneva Convention.[13]
  • However, based on Article 38(1)(c) and (e) of the Asylum Procedures Directive, Member States of the European Union may apply the “STC” concept only if the third country concerned respects the principle of non-refoulement in accordance with the Geneva Convention, and if the possibility exists to request refugee status in that third country and, if found to be a refugee, to receive protection there in accordance with the Geneva Convention. Already under these requirements alone, Turkey fails to meet the conditions necessary to be considered a “STC”.
  • Despite the fact that there is no protection under the Geneva Convention for non-Europeans available in Turkey, Turkey particularly offers to asylum seekers the following permits based on the Law on Foreigners and International Protection No. 6458 (LFIP)[14]: conditional refugee status (Şartlı Mülteci Statüsü), subsidiary protection status (İkincil Koruma Statüsü) and temporary protection status for Syrian nationals (Geçici Koruma Statüsü). However, based on the experience of the Interveners’ members working in the field, one of the main obstacles for asylum seekers in Turkey to obtain a residence permit is insufficient access to the migration system.[15]
  • Temporary protection for Syrian nationals: Since October 2014[16] Syrians can officially obtain Temporary Protection Status (TPS)[17] in Turkey under the Temporary Protection Regulation (TPR).[18] TPS is designed for situations of high numbers of refugees entering Turkey, and therefore, “is not defined as a form of international protection but a complementary measure used in situations where individual international protection eligibility processing is deemed impractical”.[19] Although the flow of people from Syria seeking refuge has not ended yet, in practice, it has become extremely difficult to obtain TPS in Turkey due to the fact that cities and neighbourhoods are closing their means of registration (see § 18).[20] According to the European Commission, “NGOs reported considerable challenges with access to registration in the first place, where individuals wishing to lodge an application in PDMMs[21] are referred to other PDMMs, without a formal documentation and referral system. Such de-facto barriers to registration hinder access to all other essential services and put asylum seekers in an irregular situation if apprehended. Effective access to international protection at borders, airports and removal centres remain limited as reported by NGOs and lawyers”.[22]
  • While TPS entitles a person to get health care and education, to apply for a work permit six months after the application for TPS, and to seek social assistance, TPS is tied to the place of registration. If a person moves to another province – e.g. to Istanbul in order to find work – then this person loses all rights attached to this status. Following TPR, Article 33(2)(a), a person under temporary protection is – if not exceptionally permitted otherwise – obligated to stay in the registration province and is not allowed to move to another province. An official transfer is close to impossible.[23] If a person fails to stay in the province of registration and is apprehended elsewhere, this person may face detention in order to be transferred back to the assigned province,[24] but there is also a risk of deportation due to violation of the TPR.[25] Furthermore, if a person fails to stay in the province of residence, they also lose all access to social rights, i.e. education and health care in their new place of residence.[26]
  • Most importantly in the context of pushbacks – based on TPR, Article 12(1) – TPS shall cease where a person leaves Turkey voluntarily, e.g. to try to reach Greece. In other words: If a TPS holder is pushed back from Greece to Turkey, this person’s temporary protection status and ID Card (“kimlik”), if even possessed, will be terminated. In addition, in practice there is no possibility to reobtain a new “kimlik”.[27] Taken the above mentioned together, the protection offered by TPS does not equal the protection provided by the Geneva Convention.
  • International Protection for non-Syrian and non-European citizens: A person who is not eligible for TPS can submit an application for international protection. Conditional refugee status is granted to a non-European citizen[28] who matches the criteria to be recognized as a refugee as set out in the Geneva Convention. However, people with conditional refugee status can not access the social rights guaranteed in the Geneva Convention. Therefore, the protection offered, again, does not equal the protection according to the Geneva Convention. Subsidiary protection, in theory, is provided to people who do not meet the criteria of the refugee definition, but would face, for example, degrading treatment upon return or would be deported to a situation of general violence.[29]
  • Analogous to TPS for Syrian nationals, citizens from other non-European countries first of all need to approach the Provincial Presidency of Migration Management (PPMM) in order to lodge an application for international protection.[30] If an application for international protection is registered, the applicant receives a “kimlik” stating that the person is an international protection applicant, which gives the holder of it the right to access education, health care (temporarily for a year), and, after six months, the right to apply for a work permit. In addition, the PPMM decides the “satellite city”[31] for the applicant and sets a date for an interview. Based on the LFIP, Article 77, international protection applicants are, for example, required to personally prove their presence in the assigned city by signature. If an applicant fails to fulfil this obligation multiple times, their application for international protection will be considered withdrawn.[32] However, the main obstacle, again, is not a theoretical non-availability of a protection status as such, but the practical non-accessibility to registration (see § 18).
  • In addition, the procedure for international protection can take up to several years,[33] and in effect, mostly ends with a negative decision, respectively with a deportation order. Asylum lawyers in Turkey have reported to the Interveners that they know of no examples of clients who, in the end, received conditional refugee status or subsidiary protection.[34] In parallel, a migration rights NGO stated to the Interveners that there are approximately 500,000 Afghans[35] in Turkey, of which 2,700 have received a “humanitarian permit” in 2019, after around five NGOs had lobbied on their behalf. Consistent with the lawyers’ reports cited before, the NGO staff is otherwise unaware of any positive decisions in international protection cases of non-Syrians. In practice, this leads to a situation where most citizens from West Asian or African countries in Turkey do not apply for international protection because they are afraid of deportation.[36] In any case, no protection equivalent to the protection under the Geneva Convention is offered to non-European third country nationals.
  • The Interveners conclude that Turkey offers insufficient protection for asylum seekers. First, the residence permits available do not equal the protection provided by the Geneva Convention. Second, the main obstacle in obtaining actual protection in Turkey is non-accessibility: It has become increasingly challenging for third country nationals to register for a “kimlik” in Turkey. In 2018, the PDMM (now “PPMM”),[37] de facto stopped registering newly arriving Syrians, with the exception of vulnerable cases, in large provinces – such as Istanbul – and provinces with a relatively high refugee population – such as Hatay and Mardin. Since then, there has been an increase in the number of cities ‘closed’ to new applications. As of early 2020, the following cities were closed to all except vulnerable cases: Istanbul, Edirne, Tekirdag, Kirklareli, Kocaeli, Canakkale, Bursa, Balikesir, Izmir, Aydin, Mugla, Antalya, Hatay and Yalova.[38] This situation has remained unchanged, as an estimated 16 provinces were closed to international protection applications in 2021[39] – as to the Intervener’s knowledge, the situation remains unchanged up until today. Due to the prohibition of travelling within Turkey for unregistered third country nationals,[40] individuals affected are, in addition, unable to travel to a place where it might be possible to register.[41] Finally, in the context of the aforementioned applications, it is of most relevance, that – based on FLIP, Article 54(1)(h), and TPR, Article 12(1)(a) and (c) – a “kimlik”, if possessed, is terminated because a person has left Turkey voluntarily, namely to try to reach Greece – and will not be able to re-obtain it. For all these reasons, the Respondent State cannot declare Turkey as generally “safe” for people who have left Turkey voluntarily, seeking international protection in Greece.

B. Systematic Arrests upon Return & Insufficient Conditions of Detention

  1. According to the European Commission, “Turkey needs to further align its practice with European standards in removal centres, in particular with regard to protection of human rights, including access to legal counselling and interpreters and protection of vulnerable groups, in particular children staying with their families”.[42]
  2. Drawing from the experience of the Interveners’ members working in the field, it has been observed that people seeking international protection who were pushed back from Greece to Turkey usually face detention in Turkey.[43] However, the duration varies between a few days and several months. Based on LFIP, Article 57(2), detention for the purpose of removal (“removal detention”) may be ordered to those who, among other reasons, have breached the rules of exit from Turkey. Even during a procedure for international protection, a person may be detained – or kept in detention if removal detention was previously ordered – under LFIP, Article 68. In general, non-European migrants are routinely subject to arbitrary detention in Turkey without legal basis. Namely, persons who are apprehended outside their designated province (see §§ 13 and 16) are at risk of being detained.[44] Based on LFIP, Article 57(3), the maximum duration of the removal detention is six months, yet it may be extended for a maximum of six more months.[45] However, there were cases reported to the Interveners, wherein detainees were released after the maximum duration had been exceeded but were arrested again afterwards.[46]
  3. Furthermore, the Interveners’ members, on several occasions, have received reports of substandard detention conditions in Turkey[47] for pushback survivors, which have even amounted to inhuman and degrading treatment. Although improvements have been made compared to conditions around 2015,[48] inhuman and degrading conditions still persist today, in particular overcrowding,[49] short periods of daily access to the outdoors,[50] lack of privacy due to detention in mass cells, insufficient food supply with, at times, only two meals a day, insufficient access to clean drinking water, and insufficient medical care.[51]
  4. In addition, accessing legal counsel or representation for people in detention is particularly difficult, even though a Legal Aid System has been implemented step by step in different cities, after the Istanbul Bar Association started these activities in 2014. First, the PPMM is not obliged to inform any legal representative about asylum seekers detained. In addition, detainees usually cannot contact a lawyer, a legal NGO, or the regional bar association from inside the detention centre. Therefore, they have to rely on family, friends, or UNHCR to initiate the contact. Second, the contact between asylum seekers in detention and their legal representation is complicated for practical reasons: While the file has to be consulted at the PPMM, the asylum seeker is held in a remote detention centre where a lawyer has to go and visit their clients. However, before the file can be accessed, a lawyer needs to get a notarized Power of Attorney (POA). Therefore, for one, an employee of a notary needs to accompany a lawyer to a detention centre to get the POA certified. This notarization comes with additional fees. For two, in order for a notary to certify a signature, the asylum seeker in question is required to have a valid “kimlik” or a passport. As survivors of pushbacks get their “kimlik” cancelled and often are deprived of all their belongings during a pushback, in these cases, it is close to impossible to sign a notarized POA. While courts in Turkey have started to accept more informal POAs, the PPMM insists on the certification through a notary. In effect, a lawyer can file an appeal against a deportation order with an informal POA, but will not be granted access to the PPMM file of the client. Third, translation inside detention centres is only allowed through formal interpreters. Therefore, a lawyer cannot be accompanied by friends or family members to facilitate communication with an existing or prospective client. Phone translation is also not possible. Certified interpreters, however, request a fee for their service, for which the detainee or a support network outside detention have to provide. Finally, despite “the increase in the number of lawyers handling cases in removal centres (from 4,187 in 2019 to 7,168 in 2020), access to legal counselling remained low, considering hundreds of thousands of migrants apprehended and placed in removal centres”.[52] Moreover, the Interveners’ members are aware of the systematic and unlawful practice of pressuring detainees to sign forms with which they agree to their “voluntary return” (see §§ 24-26). Apart from this, there have been further reports of ill-treatment, including torture, against detainees by staff. For example, in June 2018, in Antalya, a Syrian national was tortured by officers, transferred to Gaziantep, and continued to suffer physical violence throughout the transfer.[53] Upon an investigation of a suicide case in Gaziantep Oğuzeli Removal Centre in 2019, Gaziantep Governorate’s Commission for Investigation and Evaluation of Human Rights Violations stated that there have been several suicide attempts in the removal centre.[54] Furthermore, on 23 June 2021, a Syrian national – based on a statement of the responsible Governor – set himself on fire and died at Izmir Harmandalı Removal Centre.[55]

C. Insufficient Protection from Refoulement in Turkey

  • In practice, non-European migrants are routinely removed from Turkey or pressured to sign the consent form for a “voluntary return”. Of most relevance for survivors of pushbacks is the regulation under LFIP, Article 54(1)(h), which states that any person who has left Turkey irregularly shall be subject to deportation. Therefore, refugees who have fled Turkey and experienced pushback operations are potentially at risk of deportation upon return because of leaving Turkey irregularly.[56]
  • In recent years, and particularly as of July and August 2019, after the regional elections in Turkey, the scale of illegal expulsions from Turkey to Syria – which constitute refoulement – have increased dramatically.[57] In this regard, it can be observed that Syrian nationals are increasingly pushed, respectively forced to sign declarations for “voluntary return”[58] – a practice that recently has been acknowledged also by the ECtHR.[59] In Akkad v. Turkey,the Court had to decide on the case of a young Syrian national, who was initially granted TPS in Turkey. He was apprehended near the Turkish-Greek land border when travelling with a group of people allegedly trying to enter into Greek territory in June 2018. Subsequently, the Applicant was detained, transferred to the Turkish-Syrian border, and – after he was coerced to sign a preprinted “voluntary return” form – deported to Syria. Here the Court came to the conclusion that Turkey, by its actions, knowingly had exposed the Applicant to a “real risk” of being subjected to treatment in violation of Article 3 of the ECHR.[60] In this regard, it should be noted that there are reports of Syrian deportees and returnees – from Turkey and from other neighbouring countries – who were arrested or forcibly disappeared after their return to Syria.[61] In October 2019, Human Rights Watch reported that Turkish authorities in Istanbul and Antakya had arbitrarily detained and deported Syrians to northern Syria, despite active hostilities in the region.[62] These deportations should be read in conjunction with the Turkish authorities’ publicly-stated objective, reported by the European Asylum Support Office: to create “safe zones” in Syria in which to return refugees.[63]
  • The practice of forced “voluntary return” was still widespread during the time period relevant for the aforementioned applications. For example, the İzmir Bar reported that people detained in removal centres have been systematically forced to sign “voluntary repatriation papers”. The people affected are not informed[64] about their legal rights and not allowed to access legal aid.[65] In Hatay, there have been allegations of violence, handcuffing, and pressure to apply for “voluntary return” by guards.[66] Lawyers have also suggested that poor detention conditions in Removal Centres are likely used as a tool to pressure migrants into “voluntary return”.[67] To the knowledge of the Interveners, this practice is still happening today.[68]
  • Furthermore, the practice of forced “voluntary return” is also directed towards non-Syrian nationals, e.g. Afghans.[69] The Human Rights Association has announced that the Afghan refugees are subjected to torture and pressure in the Harmandalı (İzmir) Removal Centre.[70] The Interveners received reports about mass deportations of Afghan citizens to Iran and were told that, in autumn 2021, approximately 30,000 Afghan nationals were being held in removal detention in Turkey.[71]
  • In practice, most non-Syrian nationals never register for a residence permit in Turkey due to the several legislative shortcomings and practical obstacles set out above. Whoever does register – Syrians and non-Syrians alike – are often forced by the socioeconomic reality to move from their allocated city to economic centres – most often Istanbul.[72] Those unable to register for any kind of status are, de facto if not de jure, potentially subject to refoulement.

D. Inadequate Reception Conditions in Turkey

  • While those who manage to obtain a “kimlik” have the right to education and health care and the right to request a work permit[73] in Turkey, in practice, it is extremely difficult to actually exercise these rights. For example, according to the European Commission, “768,839 children with some kind of protection status were enrolled in formal education in Turkey by December 2020. However, more than 400,000 schoolaged refugee children were still out-of-school and did not have any access to education opportunities”.[74] Furthermore, although there are around 3.5 million Syrians registered in Turkey, only 60,000 Syrians have a work permit.[75] Conversely, the vast majority of migrants in Turkey work in the informal labour market,[76] and, thus, are subjected to exploitative labour conditions. Notably, the Interveners have received reports about migrants under the age of 18 being subjected to child labour.[77]
  • There is a broad consensus – both in the ECtHR and at international and European level – that asylum seekers are a particularly underprivileged and vulnerable population in need of special protection and that states have a positive obligation to provide material support and accommodation to asylum seekers.[78] However, minors, women, survivors of torture and violence, and LGBTIQ+ people have special reception needs because of their specific additional vulnerabilities which ought to be addressed. Nevertheless, in Turkey, there is a clear lack of such special reception conditions. Gender-based violence against refugee women, for example, persists as a risk.[79]At the same time, survivors of gender-based violence in Turkey face serious challenges, in particular discrimination and language barriers when they approach protection services.[80] Moreover, the capacity of women’s shelters in Turkey is quite low,[81] and receiving access is particularly difficult for refugee women.[82] At the same time, there are no shelters for LGBTIQ+ people, who – according to the domestic law in Turkey – are not even recognised as a vulnerable group.[83] Not least from such systematic shortcomings towards specific groups of refugees stems the Respondents State’s obligation to carefully examine the individual situation of every applicant before returning them to Turkey.
  • Finally, enforced destitution itself constitutes inhuman and degrading treatment or punishment contrary to Article 3 of the Convention. Those denied access to a residence permit – including through means of international protection – are denied shelter, food, and access to education, and are simultaneously excluded from the right to work and state support. In addition, based on the many reports on how pushbacks are executed the people affected are, in most cases, deprived of all their material belongings, including money, phones, and identification documents.[84] This deprivation further exacerbates the destitution pushback survivors face upon return to Turkey. While in detention, the people affected are provided with shelter and minimal food, and after being released from the detention centre, there is no State assistance offered by the Turkish government.[85] Read in conjunction with the Court’s most recent case law, it needs to be taken into account that the people affected – before being exposed to complete destituton – had already had been in an extremely vulnerable situation: they had been subjected to a violent pushback, and some may even have lost relatives or friends during the pushback. Therefore, they had undoubtedly been in a situation of extreme stress and most likely had already experienced feelings of intense pain and grief.[86]
  • Taken together, survivors of pushbacks face a situation of complete disregard of their human dignity upon return to Turkey. As a result, there are reasons for believing that the removal or return from Greece to Turkey will expose a person to treatment contrary to Article 3 of the Convention.

E. Racist Violence, Hate Speech & Increasing Risk of Physical Attacks

  • Over the last years, violent attacks targeting migrants have been increasing in Turkey.[87] This violence can also be observed by following the increasing hate speech on social media platforms which remain unsanctioned.[88] Moreover, in Annex 1, the Interveners submit a nonexhaustive list of attacks and statements of politicians since the end of 2016. The general escalation of racist sentiments should be read in conjunction with this inflammatory political rhetoric targeting refugees and migrants and the severe deterioration of the economic situation in Turkey.[89]
  • Under the scope of Article 2 of the ECHR, the Contracting States have a positive obligation to protect human life.[90] Given the extent of hate speech and physical attacks against migrants in Turkey, the Respondent State needs to take into account that a person fleeing from Turkey might be fleeing from racist violence and also assume that any person returned to Turkey may become an (arbitrary) target of a physical attack. Also from these circumstances, it follows that the Greek authorities are obliged to examine all applications individually.
  • Related to the preceding § 18, it is worth mentioning the violent attacks in Altındağ (Ankara) in 2021. A fight between Syrian and local youngsters triggered the attack of shops and homes belonging to Syrian refugees.[91] Following these events, the Turkish government started a so-called “dilution project”[92] to limit the refugee population to 25% of the total population in every neighbourhood: “Since May 2022, it is against the law for any region or area in Turkey to have a population of foreign nationals that is more than one-quarter of the total population”.[93] Refugees are “encouraged” to relocate to other neighbourhoods which have refugee populations lower than 25%, and it is reported that some refugees could not register their addresses due to this population limitation.[94]

III. CITIZENS OF TURKEY

  • It is well known that since the attempted coup on 15 July 2016, political criticism in Turkey has been heavily persecuted. However, the limited independence of the judiciary and widespread politically motivated criminal charges have always been problems in Turkey. Nevertheless, together with the State of Emergency (“SoE”), the situation has further deteriorated.[95] Due to the recent developments, international legal organisations felt the urge to establish the International Fair Trial Day, and within their initial statement, they underlined the systematic violations of the fair trial principles in Turkey.[96]
  • There is also the risk of severe torture in Turkey. For instance, the People’s Law Office (HHB) reported on Ayten Öztürk who was arrested in Beirut on 9 March 2018, extradited to Turkey on 13 March 2018, and was subsequently held in unofficial detention for 6 months until 28 August 2018. She was subjected to severe torture in Turkey.[97] In recent years, there are several judgments from different countries where the local courts decided in favor of non-extradition due to the severe risk of torture in Turkey.[98]
  • A joint report of Turkey-based human rights organizations, which covers 2019 and the first half of 2020, emphasizes that torture is not limited to police headquarters or demonstrations, but is a common practice in prisons.[99] There are a significant number of reports from other NGOs and rights organisations that support these findings.[100] In addition, it was reported that 45 pushback survivors were severely tortured by the Turkish soldiers upon their return. ÖHD, one of the interveners, lodged a criminal complaint; however, the case file was closed by the prosecutor’s office.[101]
  • Citizens of Turkey with criminal charges who are pushed back to Turkey face serious risk of immediate arrest, detention, and torture

IV. LACK OF INFORMATION

  • The Interveners come to the conclusion that, given the overall circumstances in Turkey, an individual examination of each claim is required to comply with the Respondent State’s obligations under the Convention, namely Article 3. Conversely, if a person – either a citizen of Turkey or a third country national – tries to obtain asylum in Greece, but is prevented from entering or staying in the country, and is therefore stopped from lodging claims for asylum, this denial would expose this person to a risk of ill-treatment and – if a third country national is concerned – even chain-refoulement to their country of origin. If, at the same time, the Greek authorities fail to provide the person who tries to obtain asylum in Greece with any relevant information about the Greek asylum procedures – and access to domestic remedies in Greece is not made available – this constitutes a violation of Article 13 in conjunction with Article 3 of the Convention.[102]

V. CONCLUSION

  • Considering the overall reception conditions in Turkey, the Interveners come to the conclusion that the Respondent State – from the moment a person enters Greek territory, both by land and sea – is obliged to conduct an in-depth analysis of the individual risks an asylum seeker faces in Turkey. There is reason to believe that the removal or return of an asylum seeker to Turkey would expose this person to treatment contrary to Article 3 due to restricted access to the asylum system in Turkey, which offers only, if at all, insufficient protection; the catastrophic social economic conditions to which migrants are subjected; and the widespread risk of racist violence. Where the Respondent State fails to conduct such an investigation, and even deprives the asylum seeker of the chance to present their claims, by pushing them back illegally, therefore violates its obligations under Article 3 of the Convention.

Finally, the Interveners are grateful for getting the opportunity to intervene in the aforementioned applications and hope to have assisted the Court with the explanations submitted.

Yours sincerely,

Melanie Aebli (on behalf of the Interveners)

Attorney at law

Annex:                           

  1) List of attacks and statements of politicians since the end of 2016

(not submitted by fax)   

2) European Commission, Turkey Report 2021 (see fn. 11)

3) ECRE, ‘Country Report: Turkey’ 2021 (see fn. 13)

4) ECRE, ‘Country Report: Turkey’ 2019 (fn. 16)

5) Expert Opinion issued by Stiftung ProAsyl (fn. 28)

6) Global Detention Project, Immigration Detention in Turkey (fn. 47)

7) Domestic Law of Turkey: Law on Foreigners and International                                Protection

8) Domestic Law of Turkey: Implementation Regulation for the Law on Foreigners and International Protection            

9) Domestic Law of Turkey: Temporary Protection Regulation

[1] See Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECtHR 2008.

[2] See Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 70-82, ECHR 2012.

[3] In Ilias and Ahemd v. Hungary the Court stated: “it is the duty of the removing State to examine thoroughly the question whether or not there is a real risk of the asylum seeker being denied access, in the receiving third country, to an adequate asylum procedure, protecting him or her against refoulement. If it is established that the existing guarantees in this regard are insufficient, Article 3 implies a duty that the asylum seekers should not be removed to the third country concerned”, Ilias and Ahemd v. Hungary [GC], no. 47287/15, § 134, Judgement of 21 November 2019.

[4] See M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 342, 343 and 362-68, with the references therein, ECHR 2011.

[5] See Tarakhel v. Switzerland [GC], no. 29217/12, § 105, ECHR 2014.

[6] Council of Europe/ECtHR Research Division, ‘Articles 2, 3, 8 and 13, The concept of a “Safe Third Country” in the case-law of the Court’, § 2, 9 February 2018.

[7] Ibid. § 4.

[8] Ilias and Ahemd v. Hungary [GC], no. 47287/15, § 139, Judgement of 21 November 2019.

[9] Ibid. § 141.

[10] See F.G. v. Sweden [GC], no. 43611/11, § 126, ECHR 2016.

[11] European Commission, Turkey Report 2021, Doc. Nr. SWD(2021) 290 final/2, 19 October 2021, p. 48, available at: https://ec.europa.eu/neighbourhood-enlargement/turkey-report-2021_en (in the Annex).

[12] Ibid., p. 49.

[13] See ECRE, ‘Country Report: Türkiye’, published in the Asylum Information Database (AIDA), 2021 Update, p. 20, available at: https://asylumineurope.org/wp-content/uploads/2022/07/AIDA-TR_2021update.pdf (in the Annex).

[14] In addition to the permits listed, Turkey offers a Short Term Residence Permit (Articles 31-33 LFIP, and Articles 28 and 29 of the Regulation for Implementation of the LFIP [Implementation Regulations]), a Family Residence Permit (Articles 34-37 LFIP, and Articles 30-34 Implementation Regulations), a Student Residence Permit (Articles 38-41 LFIP, and Articles 35-39 Implementation Regulations), a Long Term Residence Permit (Articles 42-45 LFIP, and Articles 40-43 Implementation Regulations), a Humanitarian Residence Permit (Articles 46 and 47 LFIP, and, Article 44 Implementation Regulations), and a Residence Permit For Victims of Human Trafficking (Articles 48 and 49 LFIP, and Articles 45 and 46 Implementation Regulations). However, these types of residence permits are not of practical relevance in the context discussed here.

[15] Information provided by Asylum Lawyers who are members of the Interveners, see also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 45.

[16] The legal basis of the 2014 Temporary Protection Regulation (TPR) is Article 91 LFIP. As a piece of secondary legislation, the TPR must be compliant and consistent with the general normative framework laid down by the LFIP itself. See ECRE, ‘Country Report: Turkey’, published in the Asylum Information Database (AIDA), 2019 Update, p. 120, available at: https://asylumineurope.org/wp-content/uploads/2020/04/report-download _aida_tr_2019update.pdf (in the Annex).

[17] Temporary Article 1 TPR indicates that Syrian nationals, stateless persons and refugees who came to or crossed Turkey’s borders from Syria due to the events that took place in Syria since April 2011 are taken under “temporary protection”.

[18] Information provided by Asylum Lawyers who are members of the Interveners; see also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 78.

[19] See ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 120.

[20] See Human Rights Watch, ‘Turkey Stops Registering Syrian Asylum Seekers’, 16 July 2018, available at: https://www.hrw.org/news/2018/07/16/turkey-stops-registering-syrian-asylum-seekers.

[21] Provincial Directorate of Migration Management (“PDMM”), today Provincial Presidency of Migration Management (“PPMM”).

[22] European Commission, Turkey Report 2021, fn. 11, p. 50.

[23] Information provided by Asylum Lawyers who are members of the Interveners.

[24] See ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 89.

[25] See Human Rights Watch, ‘Turkey Stops Registering Syrian Asylum Seekers’, fn. 20.

[26] Information provided by Asylum Lawyers who are members of the Interveners, see also ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 70-71, and also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 91-92.

[27] In the file of a person who loses their “kimlik” based on attempting to leave, or leaving Turkey illegally, the code V78 will be registered. This code indicates that no new “kimlik” can be issued. Information provided by Asylum Lawyers who are members of the Interveners.

[28] For specific information regarding citizens of Iraq and Afghanistan, Chechens, Daghestanis and Tajiks, Somali people and Iranians see ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 79-81; for specific information on citizens of Afghanistan also see Expert Opinion issued by Stiftung ProAsyl, ‘The Situation of Afghan Refugees in Turkey’, March 2021, available at: https://www.proasyl.de/wp-content/uploads/PA_Expert-Opinion_The-Situation-of-Afghan-Refugees-in-Turkey.pdf (in the Annex).

[29] Information provided by Asylum Lawyers who are members of the Interveners.

[30] See ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 90.

[31] See ibid, p. 89.

[32] See ibid, p. 91.

[33] Information provided by Asylum Lawyers who are members of the Interveners, see also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 49.

[34] Information provided by Asylum Lawyers who are members of the Interveners.

[35] For specific information on citizens of Afghanistan see Expert Opinion issued by Stiftung ProAsyl, fn. 28.

[36] Information provided by Asylum Lawyers who are members of the Interveners.

[37] See fn. 21.

[38] See AIDA & ECRE, ‘Registration under Temporary Protection – Turkey’, 30 November 2020, available at: https://www.asylumineurope.org/reports/country/turkey/registration-under-temporary-protection.

[39] See ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 45-46.

[40] Information provided by Asylum Lawyers who are members of the Interveners.

[41] See AIDA & ECRE, fn. 38.

[42] European Commission, Turkey Report 2021, fn. 11, p. 17-18.

[43] Information provided by Asylum Lawyers who are members of the Interveners, see also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 115.

[44] See ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 87-89, see also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 117-118.

[45] Information provided by Asylum Lawyers who are members of the Interveners; see also ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 87.

[46] Information provided by Asylum Lawyers who are members of the Interveners.

[47] Information provided by Asylum Lawyers who are members of the Interveners; see also Global Detention Project, ‘Country Report, Immigration Detention in Turkey’, October 2021, available at: https://www.globaldetentionproject.org/immigration-detention-in-turkey -trapped-at-the-crossroad-between-asia-and-europe#:~:text=Numerous%20observers%20have%20reported%20poor,detainees%20access%20to%20legal%20assistance (in the Annex).

[48] See Council of Europe’s Committee for the Prevention of Torture (CPT), ‘Report to the Turkish Government

on the visit to Turkey carried out by the (CPT) from 16 to 23 June 2015, CPT/Inf (2017) 32, available at: https://rm.coe.int/pdf/ 168075ec0a; this Report was summarised by the Stockholm Centre for Freedom, ‘CPT report highlights problems in Turkey’s immigration detention centers’, 18 October 2017, available at: https://stockholmcf.org/cpt-report-highlights-problems-in-turkeys- immigration-detention-centers/; furthermore, as mentioned in the ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 97, a series of judgments from the Constitutional Court have highlighted the need to provide adequate detention conditions in Turkey.

[49] Information provided by Asylum Lawyers who are members of the Interveners.

[50] For example, clients have reported that access to an outdoor yard was granted in groups, leaving them individually with 10 minutes yard time in the morning and 10 minutes in the evening.

[51] Information provided by Asylum Lawyers who are members of the Interveners.

[52] European Commission, Turkey Report 2021, fn. 11 p. 49.

[53] See ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 101; see also Global Detention Project, ‘Country Report, Immigration Detention in Turkey’, fn. 47, p. 50.

[54] See Türkiye İnsan Hakları ve Eşitlik Kurumu, Gazi̇antep Geri̇ Gönderme Merkezi̇ Zi̇yareti̇ Raporu (Rapor No: 2019/ 05), February 2019, p. 5, available at: https://www.tihek.gov.tr/upload/file_editor/2019/07/1562585466.pdf; see also sendika.org, ‘HDP’li Toğrul, Antep Geri Gönderme Merkezi’ndeki intihar iddialarını Meclis’e taşıdı’, 3 August 2019, available at: https://sendika.org/2019/08/hdpli-togrul-antep-geri-gonderme-merkezindeki-intihar-iddialarini-meclise-tasidi-556817/.

[55] Human Rights Foundation of Turkey, ‘24 June 2021, Daily Report on Human Rights Violations’, available at: https://en.tihv.org.tr/documentation/24-june-2021-hrft-documentation-center-daily-human-rights-report/ i; critical about the detailed statement of the Governor see Statement of the Izmir Bar Association, issued on 6 August 2021, available at: https://www.izmirbarosu. org.tr/HaberDetay/2370/harmandali-geri-gonderme-merkezi-nde-yasamini-yitiren-suriyeli-multeci-ahmed-maslem-anildi.

[56] Information provided by Asylum Lawyers who are members of the Interveners.

[57] See Norwegian Refugee Council, ‘Dangerous Ground: Syrian refugees face an uncertain future’, 2018, available at: https://www.nrc.no/globalassets/pdf/reports/dangerous-ground—syrias-refugees-face-an-uncertain-future/dangerous-ground—syrian-refugees-face-an-uncertain-future.pdf; Amnesty International, ‘Sent to a War Zone: Turkey’s illegal deportations of Syrian Refugees’, 2019, available at: https://www.amnesty.org/download/Documents/EUR4411022019ENGLISH.pdf; Jesse Marks, ‘Pushing Syrian Refugees to Return’, Carnegie Endowment for International Peace, 1 March 2018, available at: https://carnegieendowment.org/sada/75684; Refugees International, ‘Insecure future: Deportations and Lack of Legal Work for Refugees in Turkey’, 19 September 2019, available at: https://www.refugeesinternational.org/reports/2019/9/18/insecure-future-deportations-and-lack-of-legal-work-for-refugees-in-turkey.

[58] Information provided by Asylum Lawyers who are members of the Interveners; see also Stockholm Centre for Freedom, ‘Syrian journalist in Turkey forced to sign repatriation document for ‘banana’ video protesting discrimination’, 4 November 2021, available at: https://stockholmcf.org/syrian-journalist-in-turkey-forced-to-sign-repatriation-document-for-banana-video-protesting-discrimination/.

[59] See Akkad v. Turkey, no. 1557/19, Judgement of 21 July 2022.

[60] See ibid., § 75.

[61] See ibid., § 11; see also Syrian Network for Human Rights, ‘The Syrian Regime Continues to Pose a Violent Barbaric Threat and Syrian Refugees Should Never Return to Syria’, 15 August 2019, available at: https://snhr.org/wp-content/pdf/english/The_Syrian_regime_ continues_to_pose_a_severe_barbaric_threat_and_Syrian_refugees_should_never_return_to_Syria_en.pdf.

[62] See Human Rights Watch, ‘Turkey: Syrians Being Deported to Danger’, 24 October 2019, available at: https://www.hrw.org/news/2019/10/24/turkey-syrians-being-deported-danger.

[63] See EASO (today EUAA) Country Guidance: Syria, September 2020, p. 44, available at: https://euaa.europa.eu/sites/default/files/Country_Guidance_Syria_2020.pdf.

[64] In connection with insufficient information, the Court, in the case Akkad v. Turkey (fn. 59), identified a violation of Article 13 ECHR.

[65] See İzmir Bar, ‘Final Report of Removal Centres and Administrative Detention from Lawyers’ Sights Workshop’, June 2019, available at: https://www.izmirbarosu.org.tr/Upload/files/geri_gonderme_rapor.pdf.

[66] See Dev Haber, ‘Antep Geri Gönderme Merkezin’de mülteciler ters kelepçeleniyor’, 25 December 2017, available at: http://bit.ly/2ETCOwC.

[67] See ECRE, ‘Country Report: Turkey’ (2019), fn. 16, p. 101.

[68] For an incident of possible summary return, including physical attacks on lawyers, see: gazeteduvar.com.tr, ‘İzmir Harmandalı GGM’de neler oluyor? Çok sayıda itfaiye ve sağlık ekibi sevk edildi, avukatlar içeri alınmadı’, 24 June 2022, available at: https://www.gazeteduvar. com.tr/izmir-harmandali-ggmde-neler-oluyor-cok-sayida-itfaiye-ve-saglik-ekibi-sevk-edildi-avukatlar-iceri-alinmadi-haber-1570795.

[69] Information provided by Asylum Lawyers who are members of the Interveners; see also a statement of the İzmir Bar Association reported on by biant.org: ‘Refugees from Afghanistan handed over to Taliban by force’, 19 April 2022, available at: https://m.bianet.org/english/migration/260665-turkey-refugees-from-afghanistan-handed-over-to-taliban-by-force.

[70] Announcement of the Human Rights Association reported on by bianet.org: ‘Afghans in İzmir forced to sign “voluntary return papers”’, 22 Apirl 2022, available at: https://m.bianet.org/english/migration/260844-afghans-in-izmir-forced -to-sign-voluntary-return-papers.

[71] Information provided by Asylum Lawyers who are members of the Interveners.

[72] Ibid.

[73] Applying for a work permit is a burdensome, costly procedure, and the responsibility of the employer, and it must be shown that the job cannot be done by a Turkish citizen in order for a permit to be granted. Information provided by Asylum Lawyers who are members of the Interveners.

[74] European Commission, Turkey Report 2021, fn. 11, p. 17.

[75] IInformation provided by Asylum Lawyers who are members of the Interveners; see also Centre for Global Development, ‘A new policy to better integrate refugees into host-country labor markets’, 22 November 2019, available at: https://reliefweb.int/report/turkey/new-policy-better-integrate-refugees-host-country-labor-markets.

[76] Information provided by Asylum Lawyers who are members of the Interveners; see also Refugees International, ‘“I am only looking for my rights” Legal employment still inaccessible for refugees in Turkey’, December 2017, available at: https://www.asylumineurope.org/sites/default/files/resources/ri_report_employmentturkey.pdf.

[77] Information provided by Asylum Lawyers who are members of the Interveners.

[78] See M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 250, ECHR 2011.

[79] See ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 109.

[80] See diken.com.tr, ‘Alo 183’ten şiddet mağduru için yanıt: Ama o kadın değil ki mülteci bayan’, 2 April 2016, available at:

https://www.diken.com.tr/alo-183ten-siddet-magduru-icin-yanit-ama-o-kadin-degil-ki-multeci-bayan/.

[81] Mültecilerle Dayanışma Derneği, ‘Mülteci̇ Kadinlarin Durumuna İli̇şki̇n Bi̇r Değerlendi̇rme:”Hem Mülteci̇ Hem Kadin: Mülteci̇ Kadinlar Ne Yaşiyor? Ne Yapmali?”’, 9 March 2018, available at: https://multeci.org.tr/2018/03/09/multeci-kadinlarin-durumuna-iliskin- bir-degerlendirmehem-multeci-hem-kadin-multeci-kadinlar-ne-yasiyor-ne-yapmali/.

[82] See GOAL Global, ‘Protection Monitoring Report on Syrian Nomadic and Semi-Nomadic Communities in Gaziantep, Şanlıurfa, Adana and Mersin’, 31 August 2021, available at: https://reliefweb.int/report/turkey/protection-monitoring-report-syrian-nomadic-and-semi- nomadic-communities-gaziantep-0.

[83] See ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 111; see also Hayriye KARA & Damla ÇALIK, ‘Waiting to be “Safe and Sound”: Turkey as a LGBTI Refugees’ Way Station’, July 2016, available at: https://kaosgldernegi.org/images/library/2016multeci-raporu2016.pdf.

[84] See Border Violence Monitoring Network, ‘The Black Book of Pushbacks – Volumes I & II’, December 2020, available at: https://left.eu/issues/publications/black-book-of-pushbacks-volumes-i-ii/; see also platform on mapping ‘Drift-backs’ in the Aegean Sea, launched by Forensic Architecture in July 2022, available at: https://aegean.forensic-architecture.org/.

[85] İzmir Bar, 2019, “Avukatların Gözünden Geri Gönderme Merkezleri ve İdari Gözetim Alanları Çalıştayı Raporu” available at: https://www.izmirbarosu.org.tr/Upload/files/geri_gonderme_rapor.pdf.

[86] See Safi and Others v. Greece, no. 5418/15, § 196, Judgement of 7 July 2022.

[87] See Amnesty International, ‘Country Report Turkey’. 2021, available at: https://www.amnesty.org/en/location/europe-and- central-asia/turkey/report-turkey/, see also ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 83.

[88] See ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 83.

[89] Information provided by Asylum Lawyers who are members of the Interveners.

[90] See Osman v. the United Kingdom [GC], no. 23452/94, § 115, Reports 1998-VIII; and Branko Tomašić and Others v. Croatia, no. 46598/06, § 50, Judgement of 15 January 2009.

[91] See, for example, swissinfo.ch, Syrian properties in Ankara attacked after youth killed, 12 August 2021, available at: https://www.swissinfo.ch/eng/syrian-properties-in-ankara-attacked-after-youth-killed/46862556; and observers.france24.com, ‘’A nightmarish night’: Syrian neighbourhood in Ankara attacked after deadly fight’, 13 August 2021, available at: https://observers.france24.com/en/middle-east/20210818-syrian-neighbourhood-ankara-turkey-attacked.

[92] See BirGün, ‘’Seyreltme’ projesinin detayları: 16 il Suriyelilere kapatıldı’, 22. February 2022, available at: https://www.birgun.net/haber/seyreltme-projesinin-detaylari-16-il-suriyelilere-kapatildi-378070

[93] ECRE, ‘Country Report: Turkey’ (2021), fn. 13, p. 83.

[94] See al-monitor.com, ‘Turkey’s quota plan for refugees alarms rights activists’, 23 February 2022, available at: https://www.al-monitor.com/originals/2022/02/turkeys-quota-plan-refugees-alarms-rights-activists.

[95] See Şerife Ceren Uysal, ‘Power Politics versus the Rule of Law in Turkey: A Case Study’, in: The Rule of Law in Retreat: Challenges to Justice in the United Nations World, ed. Slawomir Redo, London, Lexington Books, 2022, p. 128.

[96] See the statement of the International Fair Trial Day and the Ebru Timtik Award, ELDH, AED and others, 23 February 2021, available at: https://eldh.eu/2021/02/international-fair-trial-day-and-the-ebru-timtik-award-hold-the-date- 14-june-2021/; and the joint statement of the initial International Fair Trial Day and the Ebru Timtik Award, ELDH, AED and others, 14 June 2021,available at: https://eldh.eu/2021/06/joint-statement-international-fair-trial-day-14-june-2021/.

[97] See İşkence Raporu, ‘Lübnan’dan Türkiye’ye iade edilen Ayten Öztürk’e gözaltında ağır işkence’, 30 August 2018, available at: https://iskenceraporu.com/ayten-ozturke-gozaltinda-agir-iskence/

[98] See Kronos 35, ‘İsveç’te Yüksek Mahkeme öğretmenin Türkiye’ye iade talebini reddetti’, 16 July 2022, available at: https://kronos35.news/tr/isvecte-yuksek-mahkeme-ogretmenin-turkiyeye-iadesini-durdurdu/, Uluslararası Af Örgütü (Amnesty Turkey), ‘Malezya: Türkiye’ye iade, gönderilen üç kişi için işkence riski taşıyor’, 12 May 2017, available at: https://www.amnesty.org.tr/icerik/malezya-turkiyeye-iade-gonderilen-uc-kisi-icin-iskence-riski-tasiyor.

[99] See Human Rights Association & and others, ‘Türkiye’de Değişik Boyutlarıyla İşkence Gerçeği’, p. 83, available at: https://hakinisiyatifi.org/wp-content/uploads/2020/06/26-Haziran-2020-Ortak-Bas%C4%B1n-Ac%CC%A7%C4%B1klamas%C4%B1-Eki-Veriler.pdf.

[100] See, for example, Freedom From Torture, ‘Torture in Turkey: past, present and future?’, April 2017, available at: https://www.freedomfromtorture. org/sites/default/files/2019-04/Turkey%20briefing%20FINAL%20170410.pdf; Human Rights Association, ‘ İHD 2019 Report On Human Rights Violations In Turkey’, May 2020, available at: https://www.fidh.org/IMG/pdf/i_hd_2019_violations_report_and_summary_table-2.pdf; Stockholm Centre For Freedom, ‘Council of Europe’s CPT confirms continued ill-treatment and torture in Turkey’, 5 August 2020, available at: https://stockholmcf.org/council-of-europes-cpt-confirms-continued-ill-treatment-and-torture-in-turkey/.

[101] See evrensel.net, ‘İHD ve Meriç nehrine atılan mültecilerin yakınlarından yetkililere çağrı: Kayıplar bulunsun’, 21 September 2021, available at: https://www.evrensel.net/haber/443210/ihd-ve-meric-nehrine-atilan- multecilerin-yakinlarindan-yetkililere-cagri-kayiplar-bulunsun; gazeteduvar.com.tr, ‘Meriç Nehri’ne atılan mülteciler: Dosyada iki aydır ilerleme yok’, 28 October 2021, available at: https://www.gazeteduvar. com.tr/meric-nehrine-atilan- multeciler-dosyada-iki-aydir-ilerleme-yok-haber-1539868; evrensel.net, ‘Meriç’e atılan sığınmacıların dosyası kapatıldı’, 16 February 2022, available at: https://www.evrensel.net/haber/455202/merice-atilan-siginmacilarin-dosyasi-kapatildi.

[102] See Kebe and Others v. Ukraine, no. 12552/12, Judgement of 12 January 2017.

Posted on

Defending Refugees in Europe

Date: 24rd of June 2022, 15h-20h00

Venue: ex-OPG “Je so pazzo”,  Naples

Via Matteo Renato Imbriani, 218 – 80136 (NAPLES) https://commonsnapoli.org/en/the-spaces/ex-opg-je-so-pazzo

Translation:  ITALIAN – ENGLISH

Moderation of the event: Margherita d’Andrea, lawyer: presentation of speakers and thematic thread of the afternoon

15h00 – 15h30

  1. Greetings

1. Thomas Schmidt, Co-Secretary General of ELDH, greetings on behalf of ELDH and AED

2. Antonio Tafuri, Lawyer, President of the Bar Council of Naples

3. Francesco Caia, Lawyer, National Bar Council, President of the “Osservatorio Internazionale Avvocati in pericolo” (OIAD https://protect-lawyers.org/it/)

4. Liana Nesta, lawyer: Introduction to the conference

16h00 – 16h45

  1. Refugee Rights: a European Perspective
  2.  Bill Bowring, (human rights barrister) What can be done for refugees at the European Court of Human Rights, now in crisis.
  3. Yiota Massouridou, (lawyer, Secretary General of AED) The Hot-Spot System and Pushbacks
  4. Danilo Risi, (Laywer, executive Committee of “Associazione Nazionale Giuristi Democratici”):  Ucrainian Refugees and effects of the mission of Giuristi Democratici and Mediterranea NGO from Naples to Poland: the national petition for the right of conscientious objection of Ukrainian men

16h45 – 17h00 Break

17h00 – 18h45

  1. Refugee Rights in Italy

9. Luigi Migliaccio, (Lawyer, member of the Commission on migration law of Bar Council of Naples and Commission of Human Rights Union des Avocats Européens – UAE): Family Reunification, latest jurisdiction

10. Francesco Priore, (Lawyer, Executive Committee of “Associazione Nazionale Avvocato di Strada”):  Complementary protections to the international protection

11. Nicola Canestrini (Lawyer): The Iuventa case

18h45 – 19h30

  1. An activist’s perspective

12. Simona Talamo, activist

13. Abdel El Mir, activist, Movimento Migranti e Rifugiati Napoli

Closing remarks: Hanno Bos, on behalf of AED & ELDH) Refugee Rights in Europe – The Massinflux Directive – Double Standards or a new progressive approach 

19h30 – 20h00 discussion

Posted on

International Fair Trial Day and the Ebru Timtik Award

Focus Country of 2022: Egypt / Call for Nominations for the Ebru Timtik Award

Hold the Date – 17-18 June 2022, Palermo/Italy

The right to a fair trial has long been recognised by the international community as a fundamental human right. Without a fair trial, every individual risks becoming the victim of a miscarriage of justice, either as an innocent suspect wrongly convicted, or as a victim unable to secure justice for a wrong perpetrated against him or her.

In 2021, an annual International Fair Trial Day was established with a steering group, and the event was supported by more than 100 legal associations. The first conference was held as a virtual event on 14 June 2021 with a focus on fair trial rights in Turkey. It was agreed that in each subsequent year a new focus country where fair trial rights are being challenged would be chosen as the focus country. The Steering Group also decided to establish an Ebru Timtik Award, in recognition of her sacrifice for the right to a fair trial.  This award will be granted every year to an individual and/or an organisation from the focus country chosen for that year for the International Fair Trial Day or to an individual and/or an organisation who has been active in defending and or promoting the right to a fair trial in that specific country. An International Fair Trial Day Alliance was also formed among prominent bar associations and lawyers’ organisations across the world which support the initiative.

After considering several proposals for the focus country of the 2022 International Fair Trial Day, the Steering Group have now decided that the focus country for this year is Egypt.

The decision is based on the following:

  1. Judicial independence is severely eroded in Egypt, which means that the right to an independent and impartial tribunal is violated in most, if not all, cases (especially against human rights lawyers, human rights defenders, journalists, and opposition politicians). Reports confirm a wide range of systemic violations of the right to a fair trial in the country, including arbitrary detention, arrests, or prosecutions of opponents or perceived opponents. There also has been a failure to effectively prosecute and punish crimes committed by state-affiliated forces, such as unlawful or arbitrary killings – including extrajudicial killings -, forced disappearances, torture, and cases of cruel, inhuman, or degrading treatment or punishment. Whilst this amounts to a violation of the rights of the victims of these crime and does not of itself amount to a violation of fair trial rights, it is further evidence that the police and prosecutors are failing in their duty to carry out effective and independent investigations and uphold the rule of law so that an atmosphere of impunity in relation to the acts of state-affiliated forces exists.[1] This dire picture is recognised in a number of reports from prominent human rights organisations. The country is classified as ‘not free’ by Freedom House, underlining – under the rule of law ranking – serious fair trial rights issues.[2] Furthermore, the World Justice Project’s 2021 Rule of Law index ranks Egypt at 136 out of 139 countries.[3]
  2. Reports indicate that the executive branch in Egypt exerts influence over the courts, which typically protect the interests of the government, military, and security apparatus and have often disregarded due process and other basic safeguards in cases against the government’s political opponents or where there is perceived dissent. Constitutional amendments made in 2019 further strengthened the Egyptian President’s supervisory powers over the judiciary and undermined its independence. The changes allowed the President to appoint the heads of judicial bodies and authorities, choosing from among several candidates nominated by their governing councils.[4] The President also serves as the veto-wielding head of the Supreme Council for Judicial Bodies and Authorities, which controls appointments and disciplinary matters for the judiciary. The chief justice of the Supreme Constitutional Court[5] is now chosen by the President from among its most senior members. Since the new provision took effect in June 2019, the Egyptian President has already used it twice to appoint new SCC presidents by decree, in July 2019 and now on February 8, 2022.
  3. Law no 162 of 1958 (“the Emergency Law”) established the institution of the Emergency State Security Court (ESSC) to adjudicate crimes that violate the terms of a “state of emergency”.⁹ In 2017, the Prime Minister transferred “protesting” and “terrorism-related” offences to the jurisdiction of the ESSC, to which was added crimes from first two chapters of the Penal Code, including those relating to ’spreading fake news’ in January 2021.
  4. Many detained government critics and opposition figures have been prosecuted by the ESSC since the state of emergency was declared in 2017; the state of emergency has been repeatedly renewed and remained in effect until late 2021. Decisions of the ESSC are not subject to appeal but instead are subject to executive-branch approval, as the President can suspend any of their rulings and order retrials. Although the constitution limited military trials of civilians to crimes directly involving the military, its personnel, or its property, a 2014 presidential decree placed all “public and vital facilities” under military jurisdiction, resulting in the referral of thousands of civilian defendants to military courts. That expansion of jurisdiction was effectively incorporated into the constitution in 2019.[6]
  5. Additional, restrictive new emergency measures enacted in 2020 were justified as a response to the COVID-19 pandemic. In May 2020, President Sisi approved and signed into law amendments to Emergency Law no. 162 of 1958 that banned all forms of public gatherings and demonstrations and gave police greater powers to make arrests. It further expanded the jurisdiction of the military judicial system over civilians by giving the President the power to authorize the military to investigate and prosecute crimes that violate the Emergency Law. Authorities also used the COVID-19 pandemic to justify skipping renewal hearings for pretrial detention orders. Although the state of emergency has been lifted since October 2021, there are ongoing trials of dozens of arbitrarily detained human rights defenders, activists, opposition politicians and peaceful protesters by emergency courts where proceedings are inherently unfair. [7]
  6. The extension of military jurisdiction in Egypt is in itself is a violation of the right to a fair trial under the African Charter on Human and Peoples’ Rights and the ICCPR, insofar as the necessity of applying such jurisdiction over civilians is almost never justified. This is in addition to other fair trial rights that are routinely violated in Egyptian courts, including military tribunals, such as the right to access counsel and the right to prepare a defence. The hearings at military tribunals are not open to the public.
  7. Other abuses of fair trial rights include the use of the Counter-terrorism Law, the Protest Law, the NGO Law, the Media Law, the Cybercrime Law, and the Penal Code to harass, arrest, and prosecute lawyers and human rights defenders, and there are many examples of arrest, detention, death in custody, and enforced disappearance of lawyers and human rights defenders. The mass trials against protesters is another practice raising fair trial rights issues.
  8. The lack of a fair trial directly affects lawyers and other human rights defenders at risk, many of whom are convicted and sentenced to long prison sentences and sometimes even the death penalty (which is still being imposed and carried out in Egypt). Reports underline an increased use of the death penalty and executions, many handed down following mass trials fundamentally lacking fair trial guarantees. Accordingly, 80 people were executed in only the first 6 months of 2021, ranking Egypt as the third-worst country in numbers of executions worldwide.[8]
  9. The African Commission on Human and Peoples’ Rights has adopted several resolutions about the situation in Egypt underlining, amongst other issues, the systemic violation of fair trial rights in the country. The calls made to the government, cited below, in a February 2015 resolution provide a strong indication of the seriousness of the issues:

“The Commission:

  • Condemns the Arab Republic of Egypt’s disregard to regional and international fair trial standards, the unlawful imposition of mass death sentences, and the persecution of journalists and human rights defenders;
  • Calls upon the Government of the Arab Republic of Egypt to comply with the African Charter, the Principles and Guidelines on Fair Trial, the Declaration on Freedom of Expression, and other instruments to which Egypt is a party;
  • Urges the Government of the Arab Republic of Egypt to put an end to the harassment, arbitrary arrest, detention and sentencing of journalists, human rights defendants, and individuals who express dissenting views regarding the Government’s actions;
  • Strongly urges the Government of the Arab Republic of Egypt to observe an immediate moratorium on the death sentences and to reflect on the possibility of abolishing capital punishment;
  • Invites the Government of the Arab Republic of Egypt to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty; and
  • Calls on the Government of the Arab Republic of Egypt to investigate all human rights violations perpetrated in the country and prosecute authors of these violations.”

[emphasis added]

[9]

  1. In an October 2021 decision, the African Commission on Human and Peoples’ Rights concluded that the Emergency Law of Egypt contravened the African Charter on Human and Peoples’ Rights and requested the government to reform domestic laws to prevent recurring human rights violations. Although the decision concerns arrest and detention of an applicant several years ago, the Commission found that the law which is still in force and used as the pretext to justify ongoing systemic violations was not in line with the African Charter.[10]
  2. In July 2021, UN Expert Mary Lawlor pointed out the ongoing violations in Egypt and highlighted a common trend across multiple cases, whereby human rights defenders are often arrested without a warrant and detained incommunicado at an unknown location and subjected to enforced disappearance, before being presented before the Supreme State Security Prosecution. Their pre-trial detention pending investigation is then ordered for alleged acts criminalized under the vague provisions of the Penal Code, Anti-Terror Law and Anti-Cybercrime Law.[11]
  3. In January 2022, a statement was issued by 65 human rights organizations, and it was underlined that the fair trial standards are routinely flouted in trials before ESSCs, including the right to adequate defence and rights to a public hearing. Defence lawyers have been prevented from communicating with their clients in private and prevented from photocopying the casefiles, indictments and verdicts.[12]
  4. Focusing the next International Fair Trial Day on Egypt will help draw more attention to the systemic fair trial violations in the country. It will provide support to many, including lawyers (at least 35 that we know of), human rights defenders, journalists, political opponents or perceived opponents who are still being arbitrarily detained there, often under unacceptable prison conditions and facing trials severely undermining the fair trial principles.

We are writing at this stage to advise you of this initiative and to invite your organisation to support International Fair Trial Day and attend the conference which will be hosted by Palermo Bar Association and held in Palermo, Italy between 17-18 June 2022. Further details of the programme and of the speakers who will address the conference will follow over the next few months. For now, we would ask you to hold the date.

Call for nominations for the Ebru Timtik Award

We also would like to invite you to nominate one or more individual(s) or an organisation for the Ebru Timtik Award among those who have demonstrated outstanding commitment and sacrifice in upholding fundamental values related to the right to a fair trial in Egypt. The individual(s) or organisation nominated for the award must be or have been active in defending and or promoting the right to a fair trial in Egypt through either his/her/its recent outstanding piece of work in relation to this fundamental right or his/her/its distinguished long-term involvement in fair trial issues. The deadline for nominations is 16 May 2022. To nominate, please send your nominations to nominationsetaward@gmail.com and kindly include: (1) the candidate’s detailed bio, (2) a letter signed by the nominating organisation/group of individuals explaining the reasons why they/it consider(s) that the candidate should be granted the Award, and (3) one recommendation/supporting letter from an unrelated, external organisation, if the application is submitted by a group of individuals.

For the details of the award criteria and process please see the attached “Selection criteria for the grant of the Ebru Timtik Fair Trial Award”. After the deadline, a jury composed of independent individuals who are experienced with the right to a fair trial, including one or more from the focus country, will determine the nominations and reach a decision.

[1] https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/egypt/ and https://www.hrw.org/world-report/2022/country-chapters/egypt

[2] https://freedomhouse.org/country/egypt/freedom-world/2021

[3] https://worldjusticeproject.org/rule-of-law-index/country/2021/Egypt%2C%20Arab%20Rep./; https://worldjusticeproject.org/sites/default/files/documents/WJP-INDEX-21.pdf

[4] https://freedomhouse.org/country/egypt/freedom-world/2021

[5] https://english.ahram.org.eg/NewsContent/1/64/460767/Egypt/Politics-/Sisi-names-first-Christian-as-president-of-Egypt;s.aspx

[6] https://freedomhouse.org/country/egypt/freedom-world/2021

[7] https://www.amnesty.org/en/latest/news/2021/10/egypt-stop-trials-by-emergency-courts/

[8] https://www.hrw.org/world-report/2022/country-chapters/egypt

[9] https://www.achpr.org/sessions/resolutions?id=146

[10] https://www.justiceinitiative.org/uploads/5d96ebd8-1a3e-4bca-afb3-8ed4683896ec/african-commission_el-sharkawi-v.-arab-republic-of-egypt_022021.pdf

[11] https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=27314&LangID=E

[12] https://www.civicus.org/index.php/media-resources/news/5570-egypt-quash-verdicts-and-stop-unfair-trials-by-emergency-courts

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The Invasion of Ukraine

(Français plus en bas)

The AED-EDL denounces the invasion of Ukraine by the Russian Federation and wishes to express its solidarity with the Ukrainian lawyers and more generally with the whole population living in Ukraine and all the people suffering the consequences of the conflict.

The military offensive is incompatible with the respect for the territorial integrity and independence of Ukraine and is a violation of Articles 2 and 33 of the United Nations Charter, which requires States to settle disputes peacefully, without threat or use of force, in such a way that international peace and security and justice are not endangered.

All States and international organisations must respect the obligations, values, freedoms and fundamental principles set out in the UN Charter, the Statute of the Council of Europe, the European Convention on Human Rights and all general principles of public international law and international humanitarian law.

The AED-EDL takes note of the decision of the Committee of Ministers of the Council of Europe to suspend, with immediate effect, the Russian Federation’s right of representation in the Committee of Ministers and the Parliamentary Assembly.

The opening of an investigation by the Prosecutor of the International Criminal Court into possible abuses committed during the conflict and the consideration by the International Court of Justice of requests for provisional measures submitted by Ukraine are undeniably a major step forward in favour of the rule of law.

AED-EDL hopes that such reactions will continue wherever conflicts break out and states violate international law, humanitarian law and human rights law.

The AED-EDL, in accordance with the spirit of the United Nations Charter calls for the immediate cessation of all acts of war, to protect the populations involved, and the opening of genuine negotiations to find a lasting peace. 

While more than 1.5 million refugees have fled Ukraine in ten days, the activation of the temporary protection mechanism provided for by Council Directive 2001/55/EC of 20 July 2001 is an appropriate but insufficient response to this exceptional situation.

However, AED-EDL regrets that this procedure has not been implemented for previous humanitarian crises, even though they were similar. All refugees must be received with dignity, regardless of their country of origin, their skin colour or the reasons for their departure.

AED-EDL condemns the various statements made by European leaders which consist in establishing two categories of refugees: those who “look like us” and for whom everything should be done to welcome them with dignity, and the others, who are clearly not welcome.

AED-EDL condemns the fact that residents from third countries, who are equally affected by the on-going conflict, are facing racist violence and are blocked at the EU border.

As previous conflicts have repeatedly shown that the outbreak of conflict and war increases the exposure of women and girls to war crimes, in particular all forms of gender-based violence, arbitrary executions, rape and trafficking, ACN urges that effective measures be put in place to protect women and girls from gender-based violence, and to ensure full accountability of those responsible for these crimes.

International humanitarian and human rights law must be respected in the context of armed conflict.

L’INVASION DE L’ UKRAINE

L’AED-EDL dénonce l’invasion de l’Ukraine par la Fédération de Russie et tient à exprimer sa solidarité avec les avocats ukrainiens et plus généralement avec l’ensemble de la population vivant en Ukraine et toutes les personnes qui subissent les conséquences du conflit.

L’offensive militaire est incompatible avec le respect de l’intégrité territoriale et de l’indépendance de l’Ukraine et constitue une violation des articles 2 et 33 de la Charte des Nations Unies, qui impose aux Etats de régler leurs différends pacifiquement, sans recourir à la menace ou à l’emploi de la force, de telle sorte que la paix et la sécurité internationales ainsi que la justice ne soient pas mises en danger.

Tous les Etats et organisations internationales doivent respecter les obligations, valeurs, libertés et principes fondamentaux énoncés dans la Charte des Nations Unies, le Statut du Conseil de l’Europe, la Convention européenne des droits de l’homme et tous les principes généraux du droit international public et du droit international humanitaire.

L’AED-EDL prend acte la décision du Comité des Ministres du Conseil de l’Europe de suspendre, avec effet immédiat, le droit de représentation de la Fédération de Russie au Comité des Ministres et à l’Assemblée parlementaire.

L’ouverture d’une enquête par le Procureur de la Cour Pénale Internationale sur les éventuels abus commis pendant le conflit et l’examen par la Cour Internationale de Justice des demandes de mesures conservatoires présentées par l’Ukraine constituent indéniablement une avancée majeure en faveur de l’Etat de droit.

L’AED-EDL espère que de telles réactions se poursuivront partout où des conflits éclatent et où des Etats violent le droit international, le droit humanitaire et les droits de l’homme.

L’AED, conformément à l’esprit de la Charte des Nations Unies, appelle à la cessation immédiate de tout acte de guerre afin de protéger les populations concernées, et à l’ouverture de véritables négociations pour trouver une paix durable. 

Alors que plus de 1,5 million de réfugiés ont fui l’Ukraine en dix jours, l’activation du mécanisme de protection temporaire prévu par la directive 2001/55/CE du Conseil du 20 juillet 2001 est une réponse appropriée mais insuffisante à cette situation exceptionnelle.

Cependant, l’AED-EDL regrette que cette procédure n’ait pas été mise en œuvre lors des précédentes crises humanitaires, pourtant similaires. Tous les réfugiés doivent être accueillis avec dignité, quels que soient leur pays d’origine, leur couleur de peau ou les raisons de leur départ.

L’AED-EDL condamne les différentes déclarations des dirigeants européens qui consistent à établir deux catégories de réfugiés : ceux qui ” nous ressemblent ” et pour lesquels tout doit être fait pour les accueillir dignement, et les autres, qui ne sont clairement pas les bienvenus.

L’AED-EDL condamne le fait que des résidents de pays tiers, qui sont également affectés par le conflit en cours, soient confrontés à des violences racistes et soient bloqués aux frontières de l’UE.

Les conflits précédents ayant montré à maintes reprises que le déclenchement d’un conflit ou d’une guerre augmente l’exposition des femmes et des filles aux crimes de guerre, en particulier à toutes les formes de violence sexiste, aux exécutions arbitraires, au viol et à la traite des êtres humains, ACN demande instamment que des mesures efficaces soient mises en place pour protéger les femmes et les filles de la violence sexiste et pour garantir que les responsables de ces crimes rendent pleinement compte de leurs actes.

Le droit international humanitaire et les droits de l’homme doivent être respectés dans le contexte des conflits armés.

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The Day of the Endangered Lawyer – Photo post-

Since 2012, the Day of the Endangered Lawyer has been dedicated to colleagues in many countries, who suffer repression for their professional work.

Brussels, 24th of January 2022

Already in 2014, the Day was dedicated to Colombia. Sadly, this year, Colombia is once again the subject of the Day of the Endangered Lawyer.

Berlin, 24th of January 2022

Accordingly, lawyers all over the world, took to the streets and to the web to show their solidarity with their Colombian colleagues.

Ankara, 24th of January 202

During the Day, a letter was handed over to the Colombian Authorities with the demands for protection of Lawyers.

Barcelona, 24th of January 2022

Also a number of webinars and conferences have been held to highlight the plight of our colleagues.

Madrid, 24th of January 2022

Our Colombian colleagues are not alone.

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Press release from Istanbul- Communiqué de Presse

En Français plus en bas de la page

Press release issued by the legal Fact Finding Mission of AED-EDL, taking place in Istanbul from the 15th September to the 20th September, to monitor and observe current mass trials against lawyers in Turkey.

Lawyers from AED–EDL have participated in the Fact Finding Mission in Istanbul from the 15th to the 20th September 2021 together with other represented international organizations, Bar Associations and the CCBE. The aim of the mission has been to monitor and observe mass trials against lawyers in Turkey. The Fact Finding Mission participants observed two hearings of the trial against Selçuk Kozağaçlı’s, Barkın Timtik’s and Oya Aslan, they have visited lawyers detained in Edirne, Kandıra and Silivri maximum security prisons, and have held meetings with the president of the Istanbul Bar Association, members of the defense and other lawyers in Turkey.

Currently, several trials against members of the lawyers’ organization Çağdaş Hukukçular Derneği (ÇHD), member of AED – EDL, are taking place, in which 28 criminal defense lawyers are accused of being members of a terrorist group, in violation of the UN Basic Principles on the Role of Lawyers. Some of the defendants have already been convicted and sentenced to heavy prison terms, others are still in pretrial detention.

AED criticizes the fact that our colleagues are convicted or face charges stemming from the performance of their professional activities. Lawyers cannot be identified with their clients’ causes. 

AED condemns the fact that the charges used by the prosecution and the court stem from the extra-professional and private life of lawyers. Being a member of a lawyers’ association or a law firm composed by lawyers assuring the defense of political prisoners, social movements, participating in protests or funerals of clients and colleagues, addressing an international support (…) are used as presumed evidence of the participation in terrorist activities by the prosecution.

AED reaffirms that those non-criminal activities are protected by the rights of freedom of expression and association of lawyers.

The members of the AED-EDL mission have clearly witnessed the fact that the defense did not have access to the original documents used by the prosecutor as evidence and was denied the right to interrogate the secret witnesses. The use of this evidence is void as it constitutes a clear violation of the equality of arms, adversarial proceedings and the principle of contradiction, which are guaranteed by article 6 of the European Convention on Human Rights.

The refusal of the prosecution to produce the original documents is to be assimilated to a lack of proof and is enough for the immediate release of all lawyers and the waiver of charges.

AED considers that the Turkish authorities are using the judicial power instrumentally to attack the lawyers and restrain their professional freedom.

Istanbul, 20th of September 2021

Communiqué de presse de la mission d’observations de l’AED-EDL, qui a eu lieu à Istanbul du 15 au 20 septembre, afin d’observer les procès de masse en cours contre les avocats en Turquie.

Des avocats de l’AED-EDL ont participé à la mission d’enquête à Istanbul du 15 au 20 septembre 2021 avec des organisations internationales représentatives de la profession d’avocat, des barreaux et le CCBE. L’objectif de la mission était de suivre et d’observer les procès de masse contre des avocats en Turquie. Les participants à la mission d’observation ont assisté à deux audiences du procès contre Selçuk Kozağaçlı, Barkın Timtik et Oya Aslan. Ils ont rendu visite à des avocats détenus dans les prisons de haute sécurité d’Edirne, Kandıra et Silivri, et ont rencontré le président du Barreau d’Istanbul, des avocats de la défense ainsi que d’autres avocats turcs.

Actuellement, plusieurs procès contre des membres de l’organisation d’avocats Çağdaş Hukukçular Derneği (ÇHD), membre de l’AED – EDL ont lieu avec 28 avocats de la défense accusés d’être membres d’un groupe terroriste, en violation des Principes de base des Nations unies relatifs au rôle des avocats. Certains des accusés ont déjà été reconnus coupables et condamnés à de lourdes peines de prison, d’autres sont toujours en détention provisoire.

L’AED dénonce le fait que nos confrères soient condamnés ou fassent l’objet de poursuites en raison de leur exercice professionnel. Les avocats ne peuvent pas être assimilés à leurs clients et aux causes qu’ils défendent.

L’AED condamne le fait que le ministère public et le tribunal utilisent la vie extra-professionnelle et privée des avocats comme des éléments à charges. Le fait d’être membre d’une association d’avocats ou d’un cabinet composé d’avocats assurant la défense de prisonniers politiques et des mouvements sociaux, de participer à des manifestations ou d’assister aux funérailles de clients et de confrères, de signer un appel à un soutien international… ne peuvent être utilisés comme des éléments de preuve d’une participation présumée à des activités terroristes.

L’AED réaffirme le fait que ces activités dépourvues de tout caractère délictuel et criminel sont protégées par le droit à la liberté d’expression et d’association des avocats.

Les membres de la mission AED-EDL ont été témoins du fait que la défense n’a pas eu accès aux documents originaux de la procédure dont les copies sont la base des poursuites par le procureur et ont pu constater l’impossibilité de la défense d’interroger les témoins anonymes. L’utilisation de ces preuves entache de nullité la procédure car elle constitue une violation manifeste de l’égalité des armes, du principe du contradictoire et des droits de la défense garantis par l’article 6 de la Convention européenne de sauvegarde  des droits de l’homme et des libertés fondamentales.

Le refus par les autorités de poursuite de produire les documents originaux doit être assimilé à une absence de preuve et doit conduire à la libération immédiate de tous les avocats ainsi qu’à l’abandon des charges à l’encontre de nos confrères.

L’AED considère que les autorités turques instrumentalisent le pouvoir judiciaire pour s’attaquer à la profession d’avocat et restreindre la liberté professionnelle des avocats.

Istanbul, 20 Septembre 2021

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JUSTICE FOR EL HIBLU 3

A reminder of the second anniversary of the rescue and subsequent detention of young migrants called El Hiblu 3

In Malta, three young migrants risk life imprisonment for having helped fellow asylum seekers to escape and be rescued from the serious risk of torture, inhuman and degrading treatment, rape, exploitation and killings in refugee camps in Libya.

On 28 March 2019 a cargo ship called El Hiblu 1 rescued over 100 migrants, including 20 women and at least 15 children who were fleeing Libya in a crowded dinghy in severe distress in the Mediterranean.  However, when the migrants were told they would be shipped back to Libya, despair and panic set in.  They made it clear that they risked death on return.  Amnesty International has reported that the rescued people never took any violent action against the captain or crew members.  Three youths, aged 15, 16 and 19 at the time interpreted for the chief officer of the ship to calm the panicked passengers. At the end of the rescue the ship docked in Malta.

These three teenagers were immediately arrested on disembarkation, and subsequently detained until November 2019, when they were released on bail.  They are known as the El Hiblu 3.  They have been investigated by the Maltese Authorities for several serious offences which carry sentences of up to 30 years in prison, including terrorism.   2 years later the bill of indictment has not yet been presented on Court.

Since November 2019 they must register every day at a police station, they are under a strict curfew and attend a Court hearing every month, as part of the investigation procedure.  Police and crew members have already given evidence to the investigation, but it was only on 4 March 2021 that a survivor from the boat was able to give an eye-witness account of events on the day.  The next hearing is on 15th April 2021.

Libya is acknowledged both in international and European law as not being a >place of safety< to which migrants can be sent back. International maritime law of the sea requires anyone rescued at sea to be brought to a >place of safety< both by the ships which rescue people, and the government agencies co-ordinating the rescue. 

Furthermore, the EU Member States are obliged to comply with the Geneva Refugee Convention (principle of non-refoulment) and the European Convention on Human Rights: protection against torture, inhuman and degrading treatment is an absolute right which cannot be restricted under any circumstances. This also includes not being complicit in enabling human rights violations by bringing people into Libya’s sphere of rule. Any instruction by a State to require rescued people to be returned to a state where they are at risk of human rights abuses is unlawful and fails to comply with several international and European Laws. 

On the one hand, non-state vessels and captains are obliged to obey orders of the entity coordinating the rescue operation on the other they are bound by international laws of the sea and the national constitution and domestic laws of their state of origin not to become a partner in crime and not to obey unlawful instructions violating international and human rights law.

International law over the past decade has established that faced with such a contradiction, international law trumps that of the state where domestic state instructions would violate that law.

“The justification of acts done pursuant to orders does not exist if the order was of such nature that a man of ordinary sense and understanding would know it to be illegal.” (United States v. Keenan, Court of Military Appeals, 39 C.M.R. 108, 110 (1969))

Two of the El Hiblu 3 have been minors at the time of the alleged offence and therefore recognised as vulnerable children with special needs and rights whose best interests should be considered in any ongoing legal proceedings.

The migrants on board El Hiblu 1 ship acted to defend their rights in international law as outlined above, in particular their right to be free from the serious risk of torture, rape, slavery and other inhuman and degrading treatment, should they be forcibly returned to Libya. 

On this second anniversary of the rescue and detention of the El Hiblu 3:

The International Association of Democratic Lawyers, the European Democratic Lawyers and the European Association of Lawyers for Democracy & World Human Rights call on the Maltese Authorities to

  • Fully implement their obligations under International Law and European Human Rights Law
  • Observe the obligations arising under both the UN and the European Conventions on the Rights of the Child
  • Respect the right of justified self-defence against unlawful acts subjecting people to torture, rape, slavery and other cruel and inhuman treatment forbidden in international and human rights law
  • Ensure that fair trial guarantees are fully upheld.  Respect the right to justified self-defence against unlawful acts as defined by Article 3(2) ECHR and against rape and slavery, as forbidden in international and human rights law
  • Ensure that the defendants have adequate access to all their rights without any restriction
  • Stop any co-operation with Libya to return refugees, ensuring respect for their rights in Malta

JUSTICE FOR THE EL HIBLU 3 !

  • European Association of Lawyers for Democracy & World Human Rights
  • European Democratic Lawyers
  • International Association of Democratic Lawyers
  • Progressive Lawyers Association (Turkey)
  • Evelyn Durmayer, IADL permanent representative at the United Nations in Vienna (Austria)
  • Center of Elaboration and Research on Democracy/Group of International Legal Intervention  (CRED/GILI) (Italy)
  • National Association of Democratic Lawyers of South Africa
  • Republikanischer Anwältinnen- und Anwälteverein e. V. (RAV)
  • Asociación Libre de Abogadas y Abogados (ALA-Madrid)
  • The Catalan Association for the Defense of Human Rights (ACDDH – Catalonia)
  • Legal Team Italia
  • Syndicat des Avocats Pour la Démocratie (SAD) (Belgium)
  • National Union of Peoples’ Lawyers (Philippines)
  • Associazione Nazionale Giuristi Democratici (Italy)
  • Ukraine Association of Democratic Lawyers
  • Vereinigung Demokratischer Juristinnen und Juristen e.V. (VDJ) (Germany)
  • Swiss Democratic Lawyers
  • Ένωση Δικηγόρων για την Υπεράσπιση των Θεμελιωδών Δικαιωμάτων” (Lawyers’ Association for the Defence of Fundamental Rights) (Greece)
  • The National Lawyers Guild International Committee (U.S.)
  • Legal Centre Lesvos (Greece)
  • Haldane Society of Socialist Lawyers (U.K.)
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International Fair Trial Day

The right to a fair trial has long been recognised by the international community as a fundamental human right.  Without a fair trial every individual risks becoming the victim of a miscarriage of justice.  Either as an innocent suspect wrongly convicted, or as a victim unable to secure justice for a wrong perpetrated against them.

Ebru Timtik was one of 18 lawyers in Turkey who were members of the Progressive Lawyers Association, some of which were working at the People’s Law Office, made subject to a prosecution in the Istanbul 37th Assize Court under Articles 314 and 220 of the Turkish Penal Code for terrorist offences. She and her colleagues were convicted on 20 March 2019 after a trial during which basic procedural safeguards and internationally recognised fair trial principles were ignored. Her conviction was based on the testimony of anonymous witnesses, many of which gave inconsistent testimony in relation to alleged facts and time periods. Documents allegedly obtained from government authorities in Belgium and Holland were never authenticated but they were nevertheless used as grounds for convictions without her lawyers having access to them. The originals of digital documents which were allegedly seized in a musical centre were also not made available to the defence lawyers. They could not see, analyse or challenge these documents which were never shown to have existed. Lawyers acting in her defence were frequently prevented from participating in the proceedings and in some circumstances were excluded.

The defects in the trial process led Ebru Timtik together with one of her colleagues, Aytaç Ünsal, to commence a “death fast” following a hunger strike which began on 5 April 2020, the Turkish “Day of the Lawyer”. Sadly, on 27 August 2020 Ebru Timtik died whilst continuing to protest both her innocence of the charges on which she had been convicted, and the lack of respect for fundamental fair trial principles in the criminal justice system which had prejudiced both her and her colleagues, and many thousands of other individuals in Turkey.

In recognition of her sacrifice, and in order to focus attention on the plight of those in countries around the globe who are facing prosecution in circumstances where fair trial principles are not being observed or respected, a number of international bar associations and lawyers organisations have come together to arrange an annual “International Fair Trial Day” which will be observed every year on 14 June.

Steps are also being undertaken to introduce a new annual Ebru Timtik Award to recognise an individual or an organisation who has or which has made an exceptional contribution towards securing fair trial rights in the country on which the International Fair Trial Day is focusing for the year in question. Each year a conference will be held, either online or at a physical location in a country chosen because of the level of concern with regard to the lack of respect for fair trial rights in that jurisdiction at that time. There will also be events in the countries across the word on each International Fair Trial Day to raise awareness of the situation in the focus country. The steering group consisting of Council of Bars and Law Societies of Europe (CCBE), European Association of Lawyers for Democracy and World Human Rights (ELDH), European Bars Federation (FBE), European Democratic Lawyers (EDL-AED), French National Bar Council (CNB), International Association of Democratic Lawyers (IADL), International Association of Lawyers (UIA), International Bar Association’s Human Rights Institute (IBAHRI), Italian National Bar Council (CNF), Law Society of England and Wales, Lawyers for Lawyers (L4L), Ayşe Bingöl Demir and Serife Ceren Uysal agreed that the first conference will be held as a virtual event on 14 June 2021 and will focus on fair trial rights in Turkey.

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Sign and make vaccines & treatments a global public good

2020 was a year of remarkable human acts of solidarity. 

Be it from doing groceries for vulnerable neighbours to scientists working day and night to find a solution to end all of this.

Luckily, we can start 2021 with the hope of being close to a safe and effective Covid-19 vaccine.

However, there are still lots of unanswered questions.

Pharmaceutical companies refuse to share their knowledge, although their research was funded with public money.

In fact, we risk paying millions for Big Pharma’s profits, money needed for our health systems. 90% of people in the lowest income countries likely won’t receive a vaccine in the next year.

We need to keep vaccines and treatments against COVID-19 affordable, safe and accessible to all.

That’s why AED-EDL supports the Right to Cure European Citizens’ Initiative.

We need 1 million signatures to make the European Commission assure that future COVID-19 vaccines and treatments will be a global public good, freely accessible to everyone, and drop deadly patents on life-saving vaccines and treatments. 

Sign the European Citizens Initiative

COVID-19 spreads like wildfire. Solutions must travel even faster. No one is safe until everyone has access to safe and effective treatments and vaccines.

We all have the right to a cure