European Rights Watch

ECHR Hit By Cyberattack Following Judgment Against The Republic of Turkey For Enduring Pre-Trial Imprisonment of Kurdish Opposition Leader

By: Benjamin Kaufman

Journal of Global Rights and Organizations, Senior Articles Editor

STRASBOURG, France – Following the publication of a ruling in which the ECHR reprimanded Turkey’s refusal to adhere to a 2018 judgment by the court, an as-of-yet unattributed cyberattack was carried out against the court’s website on December 22, 2020.

Supporter of Turkey’s Main pro-Kurdish Peoples’ Democratic Party (HDP) Holds Portrait of Jailed Former Leader Selahattin Demirtas During a Campaign Event in Istanbul, Turkey. Photo Courtesy of Reuters and Huseyin Aldemir.

The Grand Chamber’s decision, understood to have prompted the hack, came 4 years after the imprisonment of Selahattin Demirtaş, the leader of a pro-Kurdish political party called the Peoples’ Democratic Party (HDP) and former member of the Turkish Parliament.  HDP is one of the left-leaning opposition parties to President Recep Tayyip Erdoğan’s Justice and Development Party (AKP).  

HDP was alleged to have ties to the Kurdish Workers Party (PKK) based on contemporaneous tweets calling for public demonstrations from both organizations in October of 2014.  Those public demonstrations led to several dozen deaths and for which PKK was blamed.  In May 2016, the Turkish parliament voted to amend the Turkish Constitution to selectively suspend parliamentary immunity and permitted police to arrest Demirtaş along with 7 other HDP members of parliament for incitement among other terrorism-related offenses on November 4, 2016. Since that time, Demirtaş has remained imprisoned by Turkish authorities.

The first review by the ECHR of Demirtaş’s case came in 2018.  When the Grand Chamber heard his claim in 2020, it considered six alleged violations stemming from the pre-trial detention:  that the pre-trial detention violated his freedom of expression both by denying his ability to sit once elected and by invalidating parliamentary immunity owed to a member of parliament; that his imprisonment was intended to suppress and deter opposition, that his detention was supported by insufficient proof, that the Turkish Codes of Criminal Procedure lacked sufficient remedy for such complaints, and that the time taken to review his initial application was a violation of his right to a speedy trial.

In its judgment, the Grand Chamber largely dismissed the Government’s arguments in favor of Demirtaş’s claims calling his incarceration “a dangerous message to the entire population” to stifle civil society and deter opposition.  The Grand Chamber ordered Turkey to take all necessary measures to immediately release Demirtaş based on violations of his rights under Articles 10, 5 §§ 1 and 3 of the Convention, Article 3 of Protocol No. 1 to the Convention, and Article 18 in conjunction with Article 5. 

For these violations, the Grand Chamber awarded Demirtaş EUR 3,500. Additionally, the Grand Chamber ordered the State to compensate Demirtaş for non-pecuniary damages assumed by virtue of his imprisonment in the amount of EUR 25,000.  Furthermore, the Grand Chamber awarded the full amount claimed for court expenses, totaling EUR 31,900 for his representatives’ hourly rate and translation costs.

Shortly after publishing its judgment, the ECHR’s website was subjected to a cyberattack that took it offline for roughly 16 hours.  The ECHR issued a statement noting that the cyberattack began shortly after the Demirtaş decision was published and “strongly deplor[ing] this serious incident.”

ECHR’s website is back online, though responsibility for the attack has not yet been claimed.

For further information, please see:

European Court of Human Rights, Judgment (Merits and Just Satisfaction): SELAHATTİN DEMİRTAŞ v. TURKEY (No. 2), Grand Chamber – 22 Dec. 2020

European Court of Human Rights, Press Releases: Cyberattack on the website of the European Court of Human Rights – 23 Dec. 2020

Human Rights Watch – Turkey: Opposition Politicians Detained for Four Years – 19 Nov. 2020

InfoSecurity Magazine – Sarah Coble: Cyber-attack on European Court of Human Rights – 23 Dec. 2020

Reuters – Ali Kucukgocmen: European Court of Human Rights says Turkey must free Demirtas – 22 Dec. 2020

After Nearly 8 Years, Adeel Muhammad and Ramzan Muhammad Receive the Justice They’ve Been Waiting For

By: Elizabeth Maugeri

Impunity Watch Staff Writer

STRASBOURG, France – The case of Muhammad and Muhammad v. Romania has received substantial notoriety since December 2012. Both men were living in Romania studying at Lucian Blaga University when the Romanian Intelligence Service (SRI) submitted an application to the prosecutor’s office to deem the two men “undesirable” in Romania. Adeel Muhammed had been in Romania for three months, Ramzan, almost four years; both men are Pakistani nationals.

The High Court of Cassation and Justice in Romania. Photo Courtesy of Romania Journal.

The Romanian Intelligence Service (SRI) accused the two men of being national security threats. They were charged with engaging in activities capable of endangering national security under Article 85 §1 of the Romanian Emergency Ordinance (OUG); and also, OUGs 194/2002, sections of 51/1991, and section 44 of 535/2004; all relating to the status of aliens and safeguarding national security. The prosecutor’s office believed these charges were safe under Article 1 Protocol No. 7 of the European Convention on Human Rights on the basis that Romania’s national security was at risk, therefore expulsion was necessary.

The document presented to the Court of Appeals by the prosecutor’s office alleged a connection between the men and al-Qaeda and their involvement in activities that threatened Romania’s national security. During the hearing, the two men were never informed of the charges brought against them because the document presented by the prosecutor’s office was deemed classified. The Court determined the classified documents were admissible as evidence because of their pertinence and conclusiveness under Article 167 of the Romanian Code of Civil Procedure.

The men submitted a request for legal assistance, which the court rejected claiming that since they had failed to file before the trial began, they were unable to request legal assistance. Judgment was delivered on the same day and the men were informed that they were going to be placed in administrative custody awaiting deportation.

After the trial, in a press release, the SRI published detailed information about the case. This included the names of the men and the alleged accusations outlined in the classified documents.

The two men hired lawyers and appealed to the High Court of Cassation and Justice. They submitted a claim for breach of OUG 194/2002 Article 85 §4 in the failure to advise them of the claims; and that even though the accusations had been deemed “classified,” the SRI published them all in a subsequent press release. They submitted documents from their university as proof of good conduct. They also requested the Court obtain their bank statements showing that they weren’t financing terrorist organizations. This was necessary because neither of their lawyers held the proper certificate that allowed them to view the classified documents.

Citing Article 305 of the Code of Civil Procedure, the High Court accepted the university’s good conduct reports but rejected the request to obtain bank statements. The High Court later dismissed the case citing that based on the classified documents, it was clear that the Court of Appeals had issued a correct judgment. Adeel and Ramzan both left Romania at the end of December.

Nearly eight years after Adeel and Ramzan left Romania, the Grand Chamber of the European Commission on Human Rights issued a judgment in favor of them. It was determined that the procedural limitations imposed on the men were a violation of their Article 1 Protocol No. 7 right for procedural safeguards relating to the expulsion of aliens.

The decision was based on a multitude of questionable tactics applied by the Court of Appeals and the High Court. The Grand Chamber noted that the domestic courts never gave clear and concrete reasoning for not allowing the men to obtain knowledge as to the charges against them nor did they assess the need to withhold the information. The Chamber also stated that it was never determined that the facts provided in the Prosecutor’s claims were verified or credible. The Grand Chamber took aim at the press release acknowledging the contradictory nature of withholding the information only to release it to the public the next day. They did not believe that the press release was an appropriate way for the men to learn of the accusations against them.

The Grand Chamber further explained that Court of Appeals only provided the men the numbers of the legal provisions, not names of the laws under which the charges were brought. Neither the Court of Appeals nor the High Court informed them of their Article 1 Protocol No. 7 procedural rights or made them aware of any domestic laws or safeguards that might have aided in their defense. The mention of obtaining lawyers was never addressed during the trial, and the Grand Chamber noted that the courts failed in suggesting lawyers with the proper certification to read the classified documents.

The limitations imposed by the courts counteracted the basic rights allotted under the ECHR and significantly disadvantaged the men throughout the trial. The judgment called for Romania to pay 10,000 euros to each man and 1,365 euros jointly for costs and fees.

For further information please see:

ECHR – Grand Chamber, Case of Muhammad and Muhammad v. Romania (Application no. 80982/12) – 15 Oct. 2020

ECHR – Press Release – Violation of Convention in view of significant limitations imposed on applicants’ right to be informed of reasons for expulsion – 15 Oct. 2020

Strasbourg Observers – The case of Muhammad and Muhammad v. Romania: the first Grand Chamber judgement on Article 1 of Protocol Nr. 7 ECHR procedural safeguards with regard to expulsion of aliens) – 29 Oct. 2020

Romania Journal.ro – Supreme Court Refers To The Court of Justice Of the EU The ‘Bule Gala’ File, Trial Procedures Suspened – 23 Apr. 2019

ECHR Finds Violations of Liberty and Freedom of Expression in Detention of Cumhuriyet Journalists

By: Tiffany Love

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France – On November 11th, 2020, the European Court of Human Rights issued a non-final Chamber judgment in the case of Sabuncu and Others v. Turkey (application no. 23199/17). The case concerned ten Turkish nationals who were either journalists for the daily newspaper Cumhuriyet, or managers of the newspaper’s principal shareholder, the Cumhuriyet Foundation.

The Cumhuriyet is One of Turkey’s Oldest Daily Newspapers. Photo Courtesy of Media Defence.

Following Turkey’s attempted coup d’état on July 15th, 2016, the individuals had been detained in November 2016 by a magistrate judge who alleged there was strong suspicion that they had been involved in dissemination of propaganda on behalf of terrorist organizations. The detainees were indicted in April 2017 and each applied to the Turkish Constitutional Court in December 2016 and to the European Court of Human Rights on March 12th, 2017, alleging in both complaints, violations of their right to liberty and security of person, freedom of expression, and freedom of the press. They had been sentenced to lengthy prison terms by the Turkish Court.

The Court released the following holdings regarding the European Convention on Human Rights:

First, via unanimous decision, there were violations of Article 5 § 1, the right to liberty and security, and of Article 10, freedom of expression. The Court found that the applicants’ detention was arbitrary and based upon ‘mere suspicion,’ lacking enough evidence to rise to the required level of ‘reasonable suspicion.’ In fact, the detention was in violation of evidentiary requirements of the Turkish Code of Criminal Procedure, which required a showing of ‘strong suspicion.’ Further, the published articles and editorials did not incite violence nor show support of or contribution to terrorist organizations; they represented public debate of already known facts and fell within the exercise of freedoms outlined by the Convention.

Also unanimously, there was no violation of Article 5 § 4, the right to speedy review of the lawfulness of detention. Despite the fact that applicants faced continued rejection of their applications to the Turkish Court, and that the indictment and sentencing process took many months, the Court did not find the time unreasonable in light of the circumstances.

By majority decision, there was no violation of Article 18, limitation on use of restrictions on rights. The Court did not find any indication that Turkish authorities had pursued any ulterior purpose in the pre-trial detention of the ten individuals. However, the applicants contend that their detention was targeted retaliation and punishment for their unfavorable reporting of government actions. Judge Kuris dissented to this holding, stating that Turkey’s pre-trial detention of the journalists amounted to “political persecution of the media” and revealed a pattern of behavior that demonstrated a clear intent to silence the media in the wake of the attempted coup.

Following the coup of 2016, the Turkish government, led by President Recep Tayyip Erdogan, began to target and arrest service personnel, judges, school teachers, university leaders, and journalists. The government declared a state of emergency, which allowed the president to promulgate new laws without the consent of parliament and to curb personal rights and freedoms with lawful justification. Journalists found themselves sentenced to lengthy prison terms and Amnesty International received credible reports of beatings, torture, and rape of government detainees. Some journalists applied to the European Court of Human Rights for relief, and several third-party free expression organizations intervened and submitted briefs on their behalf, urging the Court to take a strong stance against the unlawful detention of journalists.

In the aftermath of the 2016 coup, the Committee to Protect Journalists estimated that as many as 140 journalists were imprisoned in Turkey; other reports estimate that number to be 150. The Court’s decision in Sabuncu is promising for detained journalists. However, some support organizations, such as Media Defence, wonder whether the Court will be willing to engage beyond the instant case and act in the face of the larger crisis in Turkey. Clearly, the Court believes that without the necessary evidence, detention of journalists is unlawful and in violation of their rights to liberty and freedom of expression. Further decisions may illuminate the Court’s willingness to play an active role in the protection of journalists in Turkey.

For further information, please see:

Article 19 – Free Expression Organisations Intervene on Cases of Detained Turkish Journalists Before the European Court of Human Rights – 26 Oct. 2017

BBC – Turkey Coup Attempt: ‘Arrest Warrants Issued’ for Journalists – 25 Jul. 2016

BBC – Turkey Sentences 25 Journalists to Jail for ‘Coup Links’ – 9 Mar. 2018  

European Court of Human Rights – Case of Sabuncu and Others v. Turkey, Second Section – 10 Nov. 2020

European Court of Human Rights – Press Release: Judgment Sabuncu and Others v. Turkey – Pre-Trial Detention of Ten Journalists and/or Managers of the Newspaper Cumhuriyet – 10 Nov. 2020

Media Defence – European Court Finds Turkey Violated Cumhuriyet Journalists’ Rights to Liberty and Security, Freedom of Expression, Detained in the Crackdown Following July 2016 Coup – 11 Nov. 2020

The Guardian – Record Number of Journalists in Jail Globally After Turkey Crackdown – 13 Dec. 2016  

Turkey Human Rights Litigation Support Project – Commentary on the May 2019 Judgments Adopted by the Turkish Constitutional Court on the Detention of Journalists and a Civil Society Leader – 2 Aug. 2019

ECHR Strikes Down Swiss Federal Provision Due to Inherent Gender Discrimination

By: Jamie McLennan

Impunity Watch Staff Writer

STRASBOURG, France – On October 20, 2020, the European Court of Human Rights (ECHR) unanimously held in B. v. Switzerland that a federal provision from Switzerland violated Article 14 (prohibition of discrimination) and Article 8 (right to respect for privacy and family life) when the Swiss Governmental provision allocated pensions differently to widows and widowers.

The European Court of Human Rights in Strasbourg, France. Photo Courtesy of ECHR.

The applicant, B., is a Swiss national who is the father of two children. The applicant lost his wife in an accident when the children were two and four years old. The Swiss Federal Law on Old-Age and Survivors’ Insurance allowed widows and widowers to collect a pension if they were unable to work while caring for their children. However, the federal statute stated that widowers should be able to return to work when their children reached majority age and no longer needed assistance. In 2010, after the applicant’s youngest daughter turned the age of majority, the Compensation Office notified him that his pension was terminated. He lodged an appeal, which stated that the federal law violated gender equality as protected in the Swiss Constitution. The Cantonal Court dismissed his appeal and acknowledged that the federal statute purposely treated men and women differently when allocating monetary resources for the death of a spouse.

In November of 2012, the applicant filed suit with the ECHR. The suit alleged that the Swiss provision violated Articles 14 and 8, as the statute discriminated against widowed fathers, as compared to widowed mothers, with the sole responsibility of raising their children.

The Court found that the applicant’s complaint fell within the scope of protection for Articles 14 and 8. The purpose of Article 8 is to protect the privacy of matters within families. According to the Court, the applicant’s pension was to enable the surviving parent to control family matters as they pleased. Moreover, the applicant lost his pension at the age of 57 and it would be difficult to envision an older man being forced to rejoin the workforce so many years later. Correspondingly, the Court also affirmed the alleged gender discrimination because the applicant did experience unequal treatment in that his payments were terminated, whereas a widow would not have lost her pension. The Court rejected the Swiss Government’s justification for the difference in treatment on grounds of sex, as the Government argued that there were different roles and statuses between men and women when the legislation was enacted in 1948. In response, the Court reiterated that the Charter is a “living instrument,” which should be interpreted in light of present-day conditions and progressive changes in society.

The Court ordered that the Swiss Government pay the applicant 5,000 euros in respect for non-pecuniary damage and 6,380 euros in respect of costs and damages.

For further information, please see;

European Court of Human Rights- Fact Sheet- 20. Oct. 2020.

European Court of Human Rights- Forthcoming Judgements- 22. Oct. 2020.

European Court of Human Rights- Press Release- 20. Oct. 2020.

ECHR Finds Greek Journalist’s Criminal Conviction Violative of Freedom of Expression Rights

By: Christian González

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France – The European Court of Human Rights (ECHR) has made a ruling finding that the 2013 criminal conviction of Mytilene-based journalist, Efstratios Balaskas – for insulting a high school headmaster – was violative of Article 10 of the European Convention on Human Rights.

Efstratios Balaskas, the journalist criminally convicted for insulting a high school headmaster. Photo courtesy of Inforrm.org.

Mr. Balaskas is a journalist who lives and works in the Greek city of Mytilene, located on the island of Lesbos on the northeastern corner of the Aegean Sea off the coast of Turkey. He was formerly the editor-in-chief of the Lesbos-based daily newspaper, Empros. On November 17th, 2020, he wrote and published an article in Empros called “The headmaster of the 6th High School of Mytilene, B.M., attacks, through his personal blog, the ‘ultimate lie of the Polytechnic school.’” This article was a response to a blog post written by the headmaster of a local high school just two days earlier, identified only as “B.M” by the ECHR.

The blog post in question was a negative opinion piece regarding the anniversary of the Athens Polytechnic Uprising of 1973. The Uprising was a student demonstration, against the government junta, that led to the restoration of the country’s parliamentary democracy. Since then, November 17th is a national holiday in Greece. In Mr. Balaskas’ response piece, he characterizes B.M. as a “neo-Nazi” and the “theoretician of the entity ‘Golden Dawn,’” a far-right and pro-fascist political party in Greece. B.M. responded by filing a criminal complaint against Mr. Balaskas for slanderous defamation.

The Criminal Court of First Instance of Mytilene heard the case on November 27th, 2013, and ruled in favor of B.M., finding that Mr. Balaskas’ characterizations were value judgments based on false allegations. The Criminal Court rejected Mr. Balaskas’ argument that there was a legitimate interest in informing the public of B.M.’s political leanings and changed the offense from slanderous defamation (a punishable offense under the Greek Penal Code § 363) to insult (an offense under § 361), and sentenced Mr. Balaskas to a six-month prison sentence. Mr. Balaskas made an appeal to the North Aegean Misdemeanor Court of Appeal on July 11th, 2016. The Court of Appeals considered B.M.’s history of posting anti-Semitic, pro-Aryan, and pro-Golden Dawn posts, including a post where B.M. stated, “IT IS AN HONOUR TO BE CALLED A NATIONAL-SOCIALIST.” Despite holding that Mr. Balaskas’ article was a value judgment based on factual findings, the Court of Appeals upheld the lower court’s holding and reduced the sentence to three months. A further appeal was dismissed by the Greek Supreme Court, stating that the Court of Appeals’ findings were proper.

The ECHR found that Mr. Balaskas properly brought his interest as a journalist with an interest in informing the public of the national-socialist leanings of B.M., a public figure, to each of the Greek Courts. In doing so, Mr. Balaskas raised, in substance, his freedom of expression rights guaranteed under Article 10 of the European Convention on Human Rights. The ECHR stated that in circumstances such as this, national courts have to conduct a balancing test between freedom of expression rights under Article 10 and privacy protection rights under Article 8. The ECHR found that the Greek courts failed to properly consider Mr. Balaskas’ article as a whole, instead focusing solely on the characterizing descriptions of B.M. It further felt that the Greek courts did not weigh in the intent of B.M. to create controversy through his blog post and that Mr. Balaskas’ language did not rise to the level of insult as to constitute an offense under Greek law, nor were the sentences given justified.

The ECHR noted that this was one of several cases where the courts of Greece have violated Article 10 through their rulings. It awarded Mr. Balaskas 1,603.58 euros (1,907.20 USD) in pecuniary damages and 10,000 euros (11,893.36 USD) in non-pecuniary damages.

For further information, please see:

European Court of Human Rights – Balaskas v. Greece, Chamber Judgement – 5 Nov. 2020

The International Forum for Responsible Media Blog (Inforrm) – Case Law, Strasbourg: Balaskas v Greece, Conviction for insulting headmaster breached Article 10 – 8 Nov. 2020

European Court of Human Rights (Council of Europe) – European Convention on Human Rights – 4 Nov. 1950

European Court of Human Rights – Press Release: Judgement Balaskas v. Greece – journalist’s criminal conviction for critical article of local headmaster (PDF download) – 5 Nov. 2020

Hellenic Parliament – Greek Penal Code – 11 Jun. 2019

Greek Reporter – Athens Polytechnic Uprising: How Greek Students Overthrew a Coup – 17 Nov. 2019