Akdağ v. Turkey: Right to a Lawyer While in Police Custody

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

ANKARA, Turkey — On September 17, 2019, the European Court of Human Rights (“ECHR”) held that the Turkish government unfairly restricted a citizen from gaining access to a lawyer, thus violating Article 6 §1 of the European Convention on Human Rights.

Hamdiye Akdağ was arrested in November 2003 and while in police custody, she confessed to being a member of the PKK/KADEK (the Workers’ Party of Kurdistan), an illegal organization. On her statement form, in the “no lawyer sought” section, she printed an “X” next to it, and was not provided a lawyer subsequently. However, once she was brought before the public prosecutor and the investigating judge, she instantly retracted her statement.

Before the trial court, Akdağ maintained her position, claiming that she was forced into signing her statement. She also noted that she was illiterate. Ultimately in 2009, Akdağ was found guilty of membership in a terrorist organization and sentenced to over six years in prison. In 2010, the Court of Cassation upheld the conviction.

Here, the Government argued that Akdağ had specified on her statement form that she did not require legal assistance. Therefore, the Government noted that she justifiably waived her right to a lawyer. However, the Court held that Akdağ did not waive her right to a lawyer because she immediately withdrew her statement before the public prosecutor and the investigating judge, and also asserted that position before the trial court. In addition, her statement form just had a printed “X” next to the type-written “no lawyer sought.” With regards to her contention that she was illiterate, the trial court did not perform a proper assessment. Lastly, the Government failed to show that Akdağ had explicitly been advised about the consequences of not requesting the assistance of a lawyer.

The Court stated that while Akdağ had been allowed legal representation during the trial, the national courts had failed to examine the validity of the waiver or of the statements she had made to the police in the absence of a lawyer. As a result, the Court found the Government violated Article 6 §1 of the ECHR and the trial was unjust because the insufficiency of close scrutiny had not been resolved by any other procedural measures.

The ECHR dedicates an entire section of the Convention to rights to access court, the right to a fair trial, and the right to access a lawyer. In this decision, the ECHR ensured that Akdağ was not deprived of this fundamental right after the lower courts failed her. This decision will help set the precedent for citizens from member states who find themselves in a similar situation.

For further information, please see:

European Court of Human Rights – Case of Akdag v. Turkey – 17 Sept. 2019

ECHR Case Law – Invalid Resignation of an Illiterate Accused of the Right to a Lawyer, Infringement of Fair Trial – 17 Sept. 2019

European Court of Human Rights – Guide on Article 6 of the European Convention on Human Rights – 30 Apr. 2019

African Court on Human And People’s Rights Strikes down Mali’s Family Code

By: Jordan Broadbent

Impunity Watch Staff Writer 

BAMAKO, Mali — In March 2018, the African Court on Human and Peoples’ Rights issued a ruling striking down Mali’s Family Code affirming their commitment to advancing women’s rights. 

Judges for the African Court on Human and Peoples’ Rights. Photo Courtesy of AfCHPR on Flickr.

The Association for the Advancement and Defense of Women’s Rights, a Malian organization dedication to the fight for equal rights, along with the Institute for Human Rights and Development in Africa, brought the Mali government to court over the implementation of the Family Code. The Applicants stated that the Code violated the African Charter on Human and Peoples’ Rights, to which Mali became a party in 1986.

The Family Code implemented several harsh laws including lowering the minimum age of marriage to 16 for females, or 15 with the consent of their fathers. The law does not require ministers to obtain consent from both parties, rather just the husband. Nor do both parties need to be present at the ceremony for the marriage to take place. Additionally, the Family Code implemented harsh inheritance laws where women could only receive half of the inheritance men in their family could receive. The applications claimed that implementations of these laws would violate Mali’s obligation under the Maputo Protocol, which lays out fundamental rights for women.

The Maputo Protocol states that the age of marriage for both genders is 18, requires consent for marriage, and mandates equal inheritance laws for both genders in countries which have ratified the Protocol.

Mali argued that the Family Code reflected the social and religious reality within the country and that the flexibility within the law respects religious rules throughout the region. The Court rejected both of these arguments.

The Court adopted the Applicants stance that the Family Code policies laid out above violate Mali’s responsibility under the Charter and thus, struck down the code. The Court’s ruling marks the first time the Court has found that a country’s statute constituted a violation of the Protocol on the Rights of Women, a major win for women’s equality in Africa.

However, the Court also reached into a country in a major way because the legislation at issue concerned a country’s social and cultural practices. This demonstrates the Court’s willingness to construe a country’s social practices in order to uphold human rights.

Since this decision, there has been little action by the Mali government to implement this ruling. The Islamic community within Mali has called to keep these laws intact, despite the Court’s ruling. Their statement stated that the Muslim community will “take any action to save the country from danger.” The government’s reluctance to overturn the Family Code in compliance with the Court’s ruling could stem from the current climate within the country.

For further information, please see:

Cambridge Core – APDF & IHRDA vs. Republic of Mali – 2 Jan. 2019

EJIL: Talk – African Court on Human and People’s Rights Delivers Landmark Ruling on Women’s Rights and the Rights of the Child in Mali – 27 July 2018

International Justice Resource Center – African Court Finds Mali’s Family Laws Violates Human Rights Obligations – 29 May 2018

African Court on Human And Peoples’ Rights – Judgement – 11 May 2018

 

The ICC Prosecutor’s Road to Justice for Afghanistan

By: Madison Kenyon 

Impunity Watch Staff Writer 

KABUL, Afghanistan — On September 17, 2019, the Pre-Trial Chamber II of the International Criminal Court (ICC) granted in part the request of the prosecutor for Leave to Appeal the Chamber’s earlier decision, which rejected the prosecutor’s request for authorization to investigate into the situation in the Islamic Republic of Afghanistan. The Pre-Trial Chamber originally rejected this authorization because it believed that an investigation at the current stage of the situation would not serve the interests of justice. Thus, on June 7, 2019, the prosecutor, Fatou Bensouda, filed for leave to appeal this decision.

International Criminal Court’s prosecutor, Fatou Bensouda. Photo courtesy of the ICC.

This procedural history stems from the preliminary examination, which began in 2006, by the Office of the Prosecutor of the situation in Afghanistan. Specifically, the prosecutor examined alleged crimes against humanity and war crimes that have occurred in Afghanistan since July 1, 2002, with particular focus on alleged crimes that occurred on May 1, 2003. The prosecutor asserts that the results of this examination prove the following: (1) crimes against humanity and war crimes by the Taliban and their affiliated network; (2) war crimes by the Afghan National Security Forces, and in particular, members of the National Directorate for Security and the Afghan National Police; (3) and war crimes by members of the United States’ armed forces and the United States Central Intelligence Agency (CIA). Overall, through this examination, the prosecutor determined that there is a reasonable basis to proceed with an investigation into this situation and thus made the request for authorization to investigate on November 20, 2017.

The prosecutor asserts that, at a minimum, the crimes against humanity that have been committed include: murder; imprisonment or other severe deprivation of physical liberty; and persecution against an identifiable group or collectivity on political and gender grounds. Along with this, the prosecutor states that the war crimes that have been committed include: murder; cruel treatment and torture; outrages upon personal dignity; intentionally directing attacks against civilians; intentionally directing attacks against personnel or objects involved in a humanitarian assistance or peacekeeping mission; internationally directing attacks against protected objects; rape and other forms of sexual violence; using, conscripting or enlisting children under the age of fifteen; and killing or wounding treacherously a combatant adversary. Further, regarding the United States’ involvement in the situation in Afghanistan, the prosecutor states that there is a reasonable basis to believe that members of the U.S. armed forces and members of the CIA committed acts of torture, cruel treatment, outrages upon personal dignity, and rape and sexual violence against conflict-related detainees in Afghanistan and other locations.

Although the Pre-Trial Chamber granted the prosecutor leave to appeal its earlier decision, this does not mean that it will also grant the prosecutor authorization to investigate further into the situation in Afghanistan. Due to the evidence produced by the prosecutor from her preliminary examination, if the Chamber again refuses to grant authorization to investigate further, it may leave many to wonder if the court is actually concerned about the “interests of justice” or if it is actually trying to avoid upsetting an international powerhouse like the United States.

For further information, please see: 

International Criminal Court – Afghanistan: ICC Pre-Trial Chamber II Authorises Prosecutor to Appeal Decision Refusing Investigation – 17 Sept. 2019

International Criminal Court – Situation in Afghanistan: Summary of the Prosecutor’s Request for Authorisation of an Investigation Pursuant to Article 15 – 20 Nov. 2017

International Criminal Court – The Prosecutor of the International Criminal Court, Fatou Bensouda, Requests Judicial Authorisation to Commence an Investigation into the Situation in the Islamic Republic of Afghanistan – 20 Nov. 2017

ICC Prosecutor Must Re-examine Attack After Appeal Chamber’s Decision

By: Madison Kenyon 

Impunity Watch Staff Writer 

MORONI, Comoros — On September 2, 2019, the Appeals Chamber of the International Criminal Court (ICC) rejected the prosecutor’s appeal against the decision of Pre-Trial Chamber I on the Application for Judicial Review by the Government of the Union of the Comoros of November 12, 2018. This was a majority decision, however there were two dissenting judges.

Judge Solomy Balungi Bossa presiding over the Appeals Chamber of the International Criminal Court on September 2, 2019. Photo Courtesy of the ICC.

This issue arose from an attack of a vessel ship, known as the Mavi Marmara, that occurred on May 31, 2010 by the Israeli Defense Forces. This ship contained 10,000 tons of humanitarian aid that a group of pro-Palestinian activists were bringing to Gaza. During this attack, nine people were killed and about 50 others injured.

In May 2013, the Union of Comoros, a party of the Rome Statute, sent a referral to the ICC’s Office of the Prosecutor to investigate this attack. However, after a preliminary examination, on November 6, 2014 the prosecutor issued her decision not to investigate any further. She stated that although the acts committed constituted war crimes, which the ICC has jurisdiction over, the acts did not have “sufficient gravity to justify further action by the ICC.” In order for the prosecutor to open an investigation, it is required by the Rome Statute that she conclude that the alleged crimes are of sufficient gravity. Thus, she stated, “…I have to be guided by the Rome Statute, in accordance with which, the ICC shall prioritize war crimes committed on a large scale or pursuant to a plan or policy.”

Although it is the prosecutor’s decision to investigate further into a case or not, on July 16, 2015, Pre-Trial Chamber I of the ICC requested the prosecutor to reconsider the decision not to investigate. Two years later though, on November 29, 2017, the prosecutor reiterated her earlier decision, stating she will not investigate further. Yet, on November 15, 2018, the Pre-Trial Chamber I went one step further, and directed the prosecutor to reconsider her decision.

This decision to direct the prosecutor is what led to the prosecutor’s appeal and this decision by the Appeals Chamber. Due to the September decision by the Appeals Chamber, the prosecutor must now once again reconsider whether she will investigate further into this attack by the Israeli Defense Forces. The Appeals Chamber however, made sure to clarify that this decision does not take away the prosecutor’s power to ultimately decide whether or not to initiate an investigation.

Despite this clarification, this decision by the Appeals Chamber leads one to question whether this is truly the case. It will be interesting to see how the court responds if the prosecutor decides once again not to investigate further.

For further information, please see: 

International Criminal Court – Situation of the Registered Vessels of Comoros, Greece and Cambodia: ICC Appeals Chamber Rejects the Prosecutor’s Appeal – 2 Sept. 2019 

International Criminal Court – Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on Concluding the Preliminary Examination of the Situation Referred by the Union of Comoros: “Rome Statute Legal Requirements Have Not Been Met” – 6 Nov. 2014 

The Guardian – Israeli Attack on Gaza Flotilla Sparks International Outrage – 31 May 2010

 

Russian Film Producer’s Freedom of Expression Rights Violated

By: Mujtaba Ali Tirmizey

Impunity Watch Staff Writer

MOSCOW, Russia — On September 10, 2019, the European Court of Human Rights (ECHR) held that the refusal to grant a film reproduction license is a violation of Article 10 of the European Convention of Human Rights which concerns freedom of expression. 

Russian national, Sergey Pryanishnikov, is a producer who owns the copyright for over 1,500 erotic films. After receiving approval for public distribution of his films, Pryanishnikov’s application for a film reproduction license was rejected by the Russian Ministry of the Press in 2003 because he was deemed to be “involved in illegal production, advertising and distribution of erotic and pornographic material and films.”

In 2004, Pryanishnikov contested the rejection before the Commercial Court of Moscow, but the court upheld the decision. The court reasoned that while Pryanishnikov had never been officially charged with the distribution of pornography and had only been interrogated by the police as a witness, since no determination had yet been made in the criminal proceedings, “it could not be ruled out that he was involved in the illegal production of pornographic films.”

Later in 2004, the Appeal Court and Court of Cassation upheld the judgment of the lower courts with both courts using similar reasoning to make their decision. In 2005, relying on Article 10, Pryanishnikov filed a complaint with the ECHR.

The Court concluded that the refusal to issue a film reproduction license interfered with Pryanishnikov’s freedom of expression. The Court conceded that protecting morals and the rights of others, in particular shielding children from access to pornographic material, were justifiable goals. However, when determining whether the interference was also “necessary in a democratic society”, the Court noted that the lower court decisions had been based on assumptions rather than reasoned findings of fact. More specifically, the Russian courts did not rely on any document from the criminal case file indicating that Pryanishnikov was suspected of that offense. As a matter of fact, they had explicitly mentioned that he had been involved in the investigation as a witness rather than a suspect.

Additionally, the Court stated that the lower courts did not weigh either the impact their decision would have on Pryanishnikov’s ability to distribute all the films for which he had distribution certificates or his freedom of expression in general. In particular, they failed to perform a balancing test between the right to freedom of expression and the need to protect public morals and the rights of others, resulting in an unjustifiable restriction of freedom of expression. 

This decision is significant because it overturned four consecutive domestic judgments suppressing freedom of expression in Russia. Ideally, following this ECHR decision, citizens’ rights to freedom of expression in other member states will be respected more. By applying the suggested balancing test, future freedom of expression decisions might be more uniform and proportionally reasoned to reach sound judgments. 

For further information, please see:

European Court of Human Rights – Film Reproduction License Refused Because of Mere Suspicions: Violation of the Right to Freedom of Expression – 10 Sept. 2019

BAILII – Case of Pryanishnikov v. Russia – 10 Sept. 2019