Freedom of Speech

The European Court of Human Rights Vindicates Dismissed Bulgarian Judge on Grounds of Freedom of Expression

By: Angelica Judge

Journal of Global Rights and Organizations, Associate Articles Editor

STRASBOURG, France – The European Court of Human Rights ruled in favor of Miroslava Todorova, a Bulgarian judge, on October 19, 2021 regarding a violation of her freedom of expression.

Photograph of Judge Miroslava Todorova. Photo Courtesy of noinvite.com.

Todorova is a judge in the criminal division of Sofia City Court in Bulgaria, and was elected president of the Bulgarian union of Judges (BUJ) in 2009.  During that time, she was publically critical of certain leadership decisions and statements within the Supreme Judicial Council (SJC).

A proposal was brought to the SJC Inspector General in July of 2011 for disciplinary proceedings to be instated against judges with a backlog of cases – with Todorova being named as one such judge. She suffered a salary reduction followed later by dismissal, and after a series of appeals, her case came before the ECtHR.

She alleged several claims under the European Convention on Human Rights, and the court found that her Article 10 right to freedom of expression had been violated. The court argued that “Those proceedings and sanctions could… have had a chilling effect on the applicant’s exercise of her freedom of expression and on that of all members of the national judiciary,” as a result of her previous comments criticizing the SJC. In coming to this decision, the court weighed what they felt to be an inadequate showing by the domestic authorities that the sanctions here were “necessary and appropriate to the legitimate aims pursued in the case.”  

The ECtHR recognized that judges still must be subject to appropriate sanctions following breaches of professional duty due to exercising their right to freedom of expression. However, if the discipline is suspected of being retaliatory, the domestic authorities must show that the sanctions were legitimate.  

Todorova had several other claims that were either unsuccessful, or were read in conjunction with the Article 10 violation. For example, the court did not find that there was a violation to Article 8 of the Convention, which provides for an individual’s right to respect for their private and family life. The basis for this claim was that the disciplinary proceedings caused significant media coverage that may have damaged her reputation. However, the court found that the media coverage was fairly balanced in terms of positive and negative attention. Proving this violation requires a standard of severity that the court felt was lacking.

Despite Todorova being unsuccessful in some of her claims, the court unanimously agreeing that there was a violation of her freedom of expression is a significant victory after a legal battle that had lasted for several years.

For further Information, please see:

American Society of International Law – ECtHR Issues Two Judgments on Freedom of Expression – 19 Oct. 2021

EU Law Live – Disciplinary proceedings against Bulgarian judge Miroslava Todorova breached freedom of expression ECtHR rules – 19 Oct. 2021

European Court of Human Rights – European Convention on Human Rights – 2 Oct. 2013

European Court of Human Rights – Disciplinary Proceedings Against and Sanctions Imposed on the Applicant, a Judge and President of the Bulgarian Union of Judges, Violated her Right to Freedom of Expression – 19 Oct. 2021

Radio Bulgaria – Judge Miroslava Todorova wins case against Bulgaria at the European Court of Human Rights – 19 Oct. 2021

Azerbaijani Government’s Act of Gagging Opposition Activists Violates Freedom of Expression

By: Ositadinma Nwosu

Impunity Watch News Staff Writer

STRASBOURG, France – Activists against the Azerbaijani Government submitted an application to the European Court of Human Rights (the Chamber) for the determination on whether the applicants’ right to freedom of expression under the provisions of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) was violated by the government. The Chamber found for the applicants.

Azeri riot policemen detain protestors in central Baku, Azerbaijan on Jan. 26, 2013. Photo Courtesy of Tofik Babayev/AFP/Getty Images.

The opposition activists are members of Nida and Free Youth Organization, civic movements founded in 2011 in Baku, capital of Azerbaijan, whose aim was to defend the constitutional and human rights of Azerbaijanis, preserve democratic values, increase the socio-political activeness of young people, and advocate for the rights of students in Azerbaijan. The organizations have most agitated for political change in the country and the applicants, in particular, were extremely vocal in their opposition against the government of Azerbaijan.

In 2013, with an intention to sensitize the public of their rights, especially as provided for in Chapter 1 of the Azerbaijan Constitution, the applicants distributed leaflets at an underground station in Baku and were arrested and detained by the police.

They were found to be guilty, after their rights to legal representation were denied, and sentenced to fifteen days in prison for pasting and handing out anti-government leaflets and for disobeying a lawful order given by a police officer. The applicants’ appeal to the Baku Court of Appeal was dismissed and the judgment of the lower court was upheld.   

Presenting their arguments before the Chamber, the applicants submitted that their right to freedom of expression in Article 10 was violated when they were arrested, detained, and convicted for distributing leaflets which did not contain any expression against the public or the interests of national security. On the other hand, the government argued that the arrest and arraignment of the applicants was due to public disorder and noise caused by the distribution of the leaflets, and not related to their freedom of expression. It is important to note that this argument by the government was neither raised at the domestic courts nor supported by any evidence before the Chamber.

The Chamber found that there was an unlawful interference with the applicants’ right to freedom of expression under Article 10, §2 of the Convention which provides that any interference must be prescribed by law. The Chamber found that the leaflets distributed by the applicants did not contain any speech or ideas prohibited by Azerbaijani domestic law and subsequently, they should not have been charged under it. Therefore, the violation of the right to freedom of expression of the applicants was not justified and it was more of an attempt by the government to silence opposition since the applicants were members of the major opposition organizations.

The Chamber awarded the sum of €5,850 to each applicant as non-pecuniary damage but refused their claim for cost and expenses since they did not support these claims with necessary documents. The Chamber further noted that it had dealt with similar cases involving the government of Azerbaijan and members of the Nida and Free Youth Organization, and the government’s actions in these cases illustrate a pattern.

For further information, please see:

Free Youth Organization – About FYO – accessed on 22 Oct. 2021.

Open Democracy – Meet N!DA, the exclamation mark that terrified the Azerbaijani authorities – 25 May 2016.

Refworld – Azerbaijan: Three youth activists sentenced and four detained ahead of presidential election – 17 July 2013.

The European Court of Human Rights – Case of HASANOV AND MAJIDLI v. AZERBAIJAN – 7 Oct. 2021.

U.S. Sanctions on ICC Officials on Hold

By: Andreas Munguia

Journal of Global Rights and Organizations, Associate Articles Editor

NEW YORK, United States – On November 4, 2021, a federal judge in the Southern District of New York granted a preliminary injunction blocking an executive order issued by the Trump Administration in June of last year, which threatened to impose sanctions on the International Criminal Court’s (ICC) officials and “any foreign person” assisting ongoing investigations by the court into suspected human rights abuses and other crimes by U.S. military personnel in Afghanistan between 2003 and 2014. The ICC, which holds jurisdiction over investigations and prosecutions of individuals accused of war crimes, called the Trump Administration’s move an attack on international criminal justice and referred to it as an attempt to interfere with the court’s independence and its responsibility to investigate suspected war crimes. The European Union had also expressed its opposition to the move.

Former U.S. Secretary of State Mike Pompeo spoke about a Trump administration executive order on the International Criminal Court as Former Defense Secretary Mark Esper listens during a joint news conference at the State Department in Washington, U.S. on June 11, 2020. Photo Courtesy of Yuri Gripas and Reuters.

Four dual-national U.S. international law professors and the Open Society Justice Initiative, a human rights organization based in New York, challenged the executive order on the ground that it was a violation of their First Amendment right to free speech. The plaintiffs – both of whom often interact with the ICC and the Office of the Prosecutor through, for example, trainings, advice, or amicus briefs – were concerned that their interactions with the court would potentially be considered “prohibited transactions” with ICC Prosecutor Fatou Bensouda and Phakiso Mochochoko, a senior member of the prosecutor’s office. If these interactions were in fact considered “prohibited transactions” with Bensouda and Mochochoko, both of whom faced sanctions under the executive order, the plaintiffs would be subject to prosecution. In addition, because the executive order allows for sanctions to be imposed on “entities that have materially assisted designated persons,” the plaintiffs were also concerned that they would face sanctions themselves.   

The district court granted the preliminary injunction on the ground that there was a high likelihood that the plaintiffs would succeed on their First Amendment claim. According to the court, the regulations under the executive order are “content-based restrictions on free speech,” because speech in support of Bensouda or Mochochoko is prohibited while speech against them is not. Therefore, such regulations are subject to strict scrutiny under which the government must show that the regulations are narrowly tailored to a compelling state interest.   

While the court did not question the government’s stated interest in “protecting the personnel of the United States and its allies from investigation, arrest, detention, and prosecution by the ICC without the consent of the United States or its allies,” the court found that the restrictions were not narrowly tailored toward such stated interest due to the fact they also prohibited speech that was not relevant to that interest. For example, the regulations also prohibited speech pertaining to ICC investigations that did not involve the U.S. and its allies.

The litigation is ongoing, and the government must respond to the plaintiff’s complaint by January 19, 2021. However, there is a chance that President Biden may rescind former President Trump’s executive order, and thus eliminate the need for further litigation.

For further information, please see:

Human Rights Watch – US Sanctions on the International Criminal Court – 14 Dec. 2020

Just Security – ICC Associates Win Temporary Reprieve from Draconian US Sanctions – 05 Jan. 2021

Law360 Legal News – Trump’s Move to Sanction ICC Officials On Hold, For Now – 04 Jan.  2021

Reuters – U.S. judge blocks Trump’s sanctions targeting human rights lawyers, war crimes tribunal – 04 Jan. 2021

Modi Regime Cracks Down on Free Speech Amid Farmers Protesting for Fair Agricultural Laws

By: Hannah Bennink

Impunity Watch Staff Writer

NEW DELHI, India – In the midst of massive protests led by farmers in pursuit of fair agricultural laws, the Indian Government has imposed a crackdown on media outlets providing coverage. Police have filed criminal charges against journalists and activists for covering and sharing information on the protests.

Citizens gather to protest for freedom of speech and expression. Photo Courtesy of BBC and Getty Images.

Among the arrested include editors of two prominent independent news outlets, The Wire and The Caravan, as well as Shashi Tharoor, a very prominent opposition Congress party politician who is charged with “misreporting facts” surrounding the death of the protestor. Other charges include sedition, promoting communal disharmony, and making statements prejudicial to national integration.

This is not the first time the press has targeted India despite the freedom of expression being a constitutionally guaranteed freedom. There have been 405 sedition cases filed against Indian citizens for criticizing politicians and governments in the last decade, an overwhelming majority of those arrests coming after Modi gained power in 2014. In 2020 alone, sixty-seven journalists were arrested and 200 physically attacked. Despite the Indian government’s pride in its vibrant and competitive media, the country ranked 142 on the 180-country World Press Freedom Index in 2020 according to Reporters Without Borders.

The Indian government denies that journalists are being targeted. The National Vice President, Baijayant Panda, told the BBC that “All journalists with avowed political affiliations and evident slant against the government have continued to write and speak freely in newspapers, television and online portals.”  The Vice President alleges that recent arrests of journalists have been in response to “serious criminal allegations of fake news peddling in a riot-like situation, with the intent of fanning violence.”

In addition to the arresting journalists, the Indian government has shut down mobile internet services at protest sights in order to “maintain public safety”. Internet rights groups have condemned the shutdowns, asserting they were “suppressing the free flow of information related to peaceful assembly and the right to protest.” International human rights law requires India to ensure that restrictions on the internet and other forms of communication are part of a necessary and proportionate response to a specific security concern, and not to curtail the flow of information or to harm people’s ability to freely assemble and express political views. The Indian government has been known to block internet access in the past. In 2019, they shut off web access more than one hundred times, along with the longest imposed blanket internet outage in a democracy for five months in Kashmir.

Several internationally known figures have spoken out in support of the farmers and the journalists including Rhianna, Rupi Kaur, Greta Thunberg, and Meena Harris. Despite the international attention, arrests have continued, the most recent being February 13th when 22-year-old climate activist Disha Ravi for being a “key conspirator” in the “formulation and dissemination” of a protest “tool-kit” meant to provide resources to farmers.

For more information, please see:

BBC News – Disha Ravi: India activist arrest decried as ‘attack on democracy’ – 14 Feb. 2021

BBC News – Why journalists in India are under attack – 4 Feb. 2021

Columbia Journalism Review – India cracks down on journalism, again – 5 Feb. 2021

Human Rights Watch – India: Journalists Covering Farmer Protests Charged – 2 Feb. 2021

The Guardian – Indian journalists face criminal charges over police shooting reports – 1 Feb. 2021

The NY Times Modi’s Response to Farmer Protests in India Stirs Fear of a Pattern – 8 Feb. 2021

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