This article comprises the speeches of Professor Bill Bowring, Peace in Kurdistan patron and of Thomas Schmidt, Secretary General of the European Association of Lawyers for Democracy and World Human Rights (ELDH), at the Conference.
9 September 2018
PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS DURING THE STATE OF EMERGENCY IN TURKEY
The crisis of the European Court of Human Rights in the face of authoritarian and populist regimes
Professor Bill Bowring
University of London
Barrister of England and Wales
President, European Lawyers for Democracy and Human Rights
This conference has already heard a great deal about the situation of the State of Emergency in Turkey since in failed coup d’état in 2016. My colleague Kerem Altiparmak will speak about Turkey at greater length.
I am going to speak about the shocking deference of the Council of Europe (CoE) in the face of three states which have perpetrated gross violations of human rights in the context of internal armed conflict: Turkey, Russia, and the United Kingdom.
First, a few words about Kerem, and about my own experience taking cases against Turkey.
Ten years ago, in 2008, I participated in a conference in Ankara organised by Kerem. The following year he published an edited collection which contains my only article in Turkish.1 In my presentation at the conference and in the article I reflected on 10 years of taking cases on behalf of Kurdish applicants against Turkey from 1992, and 8 years taking cases on behalf of Chechen applicants against Russia. My most important cases against Turkey (I was advocate in about 30 cases) were Özgür Gündem v Turkey2, Aktaş v Turkey3, and İpek v Turkey4. These were important cases, but it will be noted that the first case took 7 years from
1 Bill Bowring “Avrupa İnsan Hakları Mahkemesi İçtihadında Parçalanma, lex specialis ve Gerilimler”, (Gökçen Alpkaya ile birlikte) 50. Yılında Avrupa İnsan Hakları Mahkemesi: Başarı mı Hayal Kırıklığı mı?, (Yay. Haz. Kerem Altıparmak), (2009) Ankara Barosu Yayınları, Ankara, s. 206-221. This appeared in English as Bill Bowring “Fragmentation, Lex Specialis and the Tensions in the Jurisprudence of the European Court of Human Rights” v.14 n.3 (2009) Journal of Conflict and Security Law pp.485-498
2 Application No. 22492/93, 16 March 2000; Turkish Kurdish newspaper, violations of Article 10, freedom of expression – also positive duty under Article 10 to protect freedom of expression
3 Application No. 24351/94, 24 April 2003; Death of young man in police custody – oral fact-finding hearing in Turkey – findings of torture and death by asphyxiation – violations of Articles 2 and 3
4 Application No. 25760/94, 17 February 2004; Abduction by Turkish army of two of the applicant’s sons – oral fact-finding hearing in Turkey – violations of article 2 and 3
lodging the application, the second 9 years, and the third 10 years. Of course, the gross violations of human rights in each case pre-dated the application.
Of course, in Ankara I asked the question why on earth the applicants wanted to take a case to the European Court of Human Rights (ECtHR).
The applicant in İpek, Abdurrezak İpek, who was born in 1942, suffered the “disappearance” of his two sons, Servet and İkram İpek, in the course of an operation conducted by security forces in his village on 18 May 1994. His village was also burned to the ground. He was then 52. From 18 to 20 November 2002, when he was 60, he gave evidence to the ECtHR sitting in the Turkish Supreme Court in Ankara. I represented him. The Court held that
… taking into account that no information has come to light concerning the whereabouts of the applicant’s sons for almost nine and a half years, the Court is satisfied that Servet and İkram İpek must be presumed dead following their unacknowledged detention by the security forces. Consequently, the responsibility of the respondent State for their death is engaged. Noting that the authorities have not provided any explanation as to what occurred following the İpek brothers’ apprehension, and that they do not rely on any ground of justification in respect of any use of lethal force by their agents, it follows that liability for their death is attributable to the respondent Government. Accordingly, there has been a violation of Article 2 on that account.
That is, Turkey murdered his sons. The ECtHR awarded him € 51,400 in compensation.
I need not emphasise that Mr İpek did not go to the ECtHR and wait 10 years, 12 from the events concerned, in order to receive some money. His prime motivation in taking his case was not even the search for justice. The perpetrators of the murder of his sons have never been brought to trial. He, like my other Kurdish and Chechen clients, demanded vindication of the truth as to what had happened to them and to their children.5 In his own case the Turkish government went to extraordinary lengths for several years to try to persuade the Court that nothing had happened to Mr İpek or his sons, and that there was no case.
And I had personal experience of the consistent practice of the Turkish state in accusing advocates of the very crimes for which their clients are accused. For example, in the oral hearing in Strasbourg in Özgür Gündem v Turkey, the Turkish government representative turned to me in front of the judges and shouted “Professor Bowring is a terrorist! He is a
5 See for example Dermot Groome (2011) “The Right to Truth in the Fight against Impunity” 29 Berkeley Journal of International Law 175 ; Federico Fabbrini (2014) “The European Court of Human Rights, Extraordinary Renditions and the Right to the Truth: Ensuring Accountability for Gross Human Rights Violations Committed in the Fight Against Terrorism” v.14 n.1 Human Rights Law Review 85–106
member of the PKK!”, because I was representing a newspaper accused of inciting terrorism. The ECtHR held that the newspaper had not incited terrorism: in fact, it had used the words “Kurd” and “Kurdish”, which Turkey considered to be “separatism”, and therefore terrorism.
In my presentation in Ankara I spoke with guarded optimism about taking cases to the ECtHR, and why victims of violations should be encouraged to take their cases and to wait for years for a result. Ten years later, was my optimism justified?
The attempted coup took place on 15 July 2016. On 6 June 2017 a chamber of the ECtHR ruled that the application in Gökhan Köksal v Turkey6 was inadmissible7. The case concerned a teacher’s dismissal by emergency Decree No. 6728, along with 50,875 other public servants who were regarded as having membership of or an affiliation, link or connection with terrorist organizations or structures, formations or groups determined by the National Security Council to engage in activities against the national security of the Turkish State.
The applicant complained of a breach of his right of access to a court, his right to be presumed innocent and his right to be informed of the accusation against him (Article 6 §§ 1, 2 and 3 (a) of the European Convention of Human Rights (ECHR). He also complained that he had been dismissed on the basis of acts which did not constitute a criminal offence at the time they were committed (Article 7-no punishment without law), and that his rights and freedoms under Articles 8 (right to respect for private and family life), 10 (freedom of expression), 11 (freedom of assembly and association), 13 (right to an effective remedy) and 14 (prohibition of discrimination) had been violated.
The Court dismissed the application for failure to exhaust domestic remedies, finding that a new remedy was available to the applicant, provided by Decree No. 685, 9which was adopted on 2 January 2017. Decree No. 685 provided for the creation of a commission, namely the ‘State of Emergency Inquiry Commission’, tasked with assessing the measures adopted directly by the emergency decrees issued in the context of the state of emergency, including the dismissals of civil servants. After several months, the rules of procedure of the
6 Application no: 70478/16
7 For analysis, see Emre Turkut “The Köksal case before the Strasbourg Court: a pattern of violations or a mere aberration?” 2 August 2017, at https://strasbourgobservers.com/2017/08/02/the-koksal-case-before-the-strasbourg-court-a-pattern-of-violations- or-a-mere-aberration/#more-3868
8 Text in English at https://rm.coe.int/16806a2e17
9 Text in English via the Venice Commission at http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2017)014-e
Commission were finally published on 12 July and the Commission finally began receiving applications on 17 July.
Kerem Altiparmak has provided a highly convincing explanation as to why the Commission cannot be an effective remedy.10 Emre Turkut concluded that “… the Strasbourg Court has adopted a narrow approach in order to reduce the overwhelming number of pending cases before it and has thus turned a blind eye to the shattered lives of the purged public servants in Turkey.”11 He pointed out that this is against the background of the fact the ECtHR is granting a wider margin of appreciation to states by providing more subsidiarity, particularly with regard to Article 35, over the past half-decade following the Brighton Declaration.12 Oleg Soldatov and Gülden Deniz Tokmak went further13:
… some of the decisions of the European Court of Human Rights could be regarded as politically motivated: the way the judges are appointed to the Court14 and the dynamics of relationships between the Court and the Council of Europe Member States15 are vaguely hinting at this. At the same time, if one hypothesizes that this inadmissibility decision in the Köksal category of cases was part of the efforts of the Council of Europe community to “pacify” Turkey and to leave room for future negotiations on other issues, this tactic has most likely failed: Turkey withdrew its extra-budgetary funding of the Council of Europe16.
On 9 March 2018 the Rules Committee of PACE proposed that Turkish should be removed from PACE’s list of working languages. According to the committee, “the draconian reduction” of the Assembly’s budget for 2018 and 2019 – which is a consequence, among other things, of the Turkish decision to return to its original status as an ordinary contributor to the Council of Europe budget – “calls for drastic measures”.17
10 Kerem Altiparmak 23 February 2017 “Is the State of Emergency Inquiry Commission, Established by Emergency Decree 685, an Effective Remedy?” at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2943518
11 Turkut, ibid, note 7
12 See on this Mikael Madsen “Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe?” at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2993222 , and v.9 n.2 (2018) Journal of International Dispute Settlement, 199–222
13 Oleg Soldatov and Gülden Deniz Tokmak “Köksal v. Turkey: Excessive Formalism or Strict Adherence to Admissibility Criteria?” 11 January 2018, at https://www.rcmediafreedom.eu/Tools/Legal-Resources/Koeksal- v.-Turkey-Excessive-Formalism-or-Strict-Adherence-to-Admissibility-Criteria
14 Erik Voeten “The Politics of International Judicial Appointments: Evidence from the European Court of Human Rights” International Organization 61, Fall 2007, pp 669–701, at http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.493.2929&rep=rep1&type=pdf
15 Roger Masterman “Supreme, submissive or symbiotic? United Kingdom courts and the European Court of Human Rights” October 2015, UCL Constitution Unit at https://www.ucl.ac.uk/constitution-unit/publications/tabs/unit-publications/166.pdf
16 https://www.dailysabah.com/politics/2017/11/10/turkey-withdraws-as-main-contributor-in-european-council- cites-monitoring-process
At this conference in Istanbul, Kerem Altiparmak argued that the ECtHR should find that the actions of the Turkish Government since 2016 amount to an “administrative practice”18. The former Commission of Human Rights had stated, in the Greek case19, that, where “there is a practice of non-observance of certain Convention provisions, the remedies prescribed will of necessity be side-stepped or rendered inadequate. Thus, if there were an administrative practice of torture or ill-treatment, judicial remedies prescribed would tend to be rendered ineffective by the difficulty of securing probative evidence, and administrative enquiries would either be not instituted, or, if they were, would be likely to be half-hearted and incomplete.”
Kevin Boyle and Hurst Hannum, counsel in Donnelly v United Kingdom20, took the view21 that
It is difficult to consider separately the two primary holdings, concerning the competence of the individual to raise the substantive issue of the existence of an administrative practice contrary to the Convention and the effect of such an alleged practice on the exhaustion of domestic remedies rule, for each is strongly supportive of the other. In addition, it is clear from a reading of the Commission’s decision that both are based on the similar premise of the inherent equality of procedures under Articles 24 and 25 (apart from the specific distinctions set out in Article 25 itself and Article 27(1) and (2)).
But even if the ECtHR held that Turkey was responsible for an “administrative practice”, so that Turkish applicants were no longer required to exhaust domestic remedies, there would be no guarantee that the ECtHR would find in their favour on the merits.
As I already mentioned, Turkey has withdrawn its extra-budgetary funding from the Council of Europe (CoE). Russia is now paying no money at all to the CoE. This poses a very serious problem: Turkey, Russia and the UK are three of the six states which contribute an exceptionally large amount to the CoE’s budget. On 16 March 2018 The Guardian reported that the CoE is facing “an unprecedented budgetary crisis”, following Russia’s decision to suspend payments in 2017 over its representation in the council’s Strasbourg assembly and
18 See Kevin Boyle and Hurst Hannum “Individual Applications Under the European convention on Human Rights and the Concept of Administrative Practice: The Donnelly Case” v.68. n.3 (1974) American Journal of International Law, pp. 440-453
19 The Greek Case, Report of the Commission, 12 Yearbook 194 (1969).
20 Application nos. 5577-5583/72, Donnelly and others v. the United Kingdom, dec. 15.12.75, DR 4 p. 4 21 Boyle and Hannum (1974) p.452
Turkey’s decision to slash its contributions. The CoE faces a shortfall of at least €42.65m (£37.6m), 10% of its annual budget, meaning it could be forced to cut jobs.22
Following Russia’s illegal annexation of Crimea in 201423, the Parliamentary Assembly of the Council of Europe (PACE) imposed sanctions on the Russian delegation. On 28 January 2015 it decided to ratify the credentials of the Russian delegation, citing the need to “foster dialogue”, but at the same time decided to suspend its voting rights and its right to be represented in the Assembly’s leading bodies “as a clear expression of condemnation of continuing grave violations of international law in respect of Ukraine” by Russia. In addition, PACE also suspended – for the duration of the Assembly’s 2015 session – the right of its Russian members to be appointed as a rapporteur, to observe elections or to represent the Assembly in other CoE or external bodies.24 These sanctions have been continued.
However, on 22 January 2018 the Secretary General of the CoE, Thorbjorn Jagland, said that sanctions against the Russian Federation should be removed in order to restore its participation in PACE by 2019.25
On 19-21 June 2018, Mr Jagland went to Russia on a working visit. The fact of his visit, to meet President Putin, Minister of Foreign Affairs Lavrov, and Human Rights Ombudsman Moskalkova, was reported very briefly on the CoE website.26
The Russian Ministry of Foreign Affairs provided its own commentary on 19 June 2018.27 It recalled that Russia had joined the CoE on February 28, 1996, becoming the 39th member state, and had ratified 65 conventions and protocols out of the 224 CoE legal documents, including the ECHR, the European Convention for the Prevention of Torture (CPT), the European Social Charter and the European Cultural Convention. In 2017-2018 alone, Russia had ratified six important Council of Europe documents, including the Convention on an Integrated Safety, Security and Service Approach at Football Matches and Other Sports Events, the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds
22 https://www.theguardian.com/law/2018/mar/16/human-rights-body-faces-cash-crisis-after-clash-with-russia 23 See Bill Bowring “Who Are the “Crimean People” or “People of Crimea”? The Fate of the Crimean Tatars, Russia’s Legal Justification for Annexation, and Pandora’s Box” in Sergey Sayapin and Evhen Tsybulenko (eds) The Use of Force against Ukraine and International Law” Jus Ad Bellum, Jus In Bello, Jus Post Bellum (T M C Asser / Springer 2018) pp. 21-40, ISBN 978-94-6265-221-7
26 https://www.coe.int/en/web/portal/-/secretary-general-jagland-to-meet-russian-president-putin-and-foreign- minister-lavrov-in-moscow
from Crime and on the Financing of Terrorism, and the Convention on the Counterfeiting of Medical Products and Similar Crimes Involving Threats to Public Health (Medicrime Convention).
The Russian MFA added:
Russia is currently actively involved in all the entities of the Council of Europe, except for its Parliamentary Assembly (PACE). Unfortunately, CE’s parliamentary dimension was taken hostage by a rather small, albeit well-organised, group of people representing anti-Russia forces.
Seeking to express its concern over the deepening crisis within PACE, the Russian Federation decided not to pay its contributions to the Council of Europe for 2017 until the delegation of the Federal Assembly of the Russian Federation is fully and unconditionally restored in its rights within the Parliamentary Assembly. At the same time, the Russian Federation remains proactive within the Council of Europe, and continues to honour its commitments under conventions it has acceded to.
The Russian media reported that Mr Jagland had congratulated Russia on successfully hosting the football world championship.28 Mr Jagland’s comments were published verbatim on the Kremlin’s website.29 As to Russia’s problems with the CoE, Mr Jagland said:
There is always a lot of focus on the European Court, and for all of the member countries there are judgments that they dislike, but, all in all, I would say that the justice of the court has been very important for all of the member states.
We have here a small brochure, which shows how the court has influenced,
in a positive way, many ways of life in the Russian Federation. This is, actually,
the meaning of the court: to help its member states come closer together by adopting laws that are in conformity with the Convention. So again, thank you for all these twenty years and thank you for your strong commitment to the Council of Europe.
Mr Lavrov said, in his meeting with Mr Jagland:
Today, we cannot fail to mention that the organisation is going through a system-wide crisis related to the situation within the Parliamentary Assembly of the Council of Europe. We greatly appreciate your efforts to find a way out of this crisis, Mr Secretary General. The solution must be based on the principles that govern the work of the Council of Europe and were devised by its founding fathers. One of these principles is equality among all member countries.30
Mr Jagland did not raise the question of Ukrainian political prisoners with Mr Putin, although it was reported that he had raised it with Mr Lavrov and Ms Moskalkova.31
30 https://ireland.mid.ru/web/ireland_/home/-/asset_publisher/jMdQKPys2LHL/content/foreign-minister-sergey- lavrov-s-opening-remarks-at-the-talks-with-secretary-general-of-the-council-of-europe-thorbj-rn-jagland- moscow-june-20-2018?inheritRedirect=false
31 https://www.unian.info/politics/10163789-coe-secretary-general-jagland-to-submit-petition-to-putin-for- pardoning-sentsov.html
Finally, on 24 June 2018, Mr Jagland finally submitted a petition to Russia in his capacity as Secretary General of the CoE, pursuant to the ECHR, calling on President Putin to pardon the Ukrainian filmmaker Oleh Sentsov, illegally convicted in Russia.32 And on 19 September 2018 the EU’s Justice Commissioner Věra Jourová called on Russian Justice Minister Alexander Konovalov to release Mr Sentsov from the Russian prison where he has been in custody for more than four years.33 Mr Sentsov was arrested in 2014 and sentenced to 20 years in jail on terrorism charges. He is a vocal critic of Russia’s annexation of Crimea. He has been on hunger strike since May 2018, calling for the release 64 Ukrainians he says are also political prisoners.
Mr Sentsov complained to the European Court of Human Rights following his arrest in 2014, and on 8 July 2014 his application was given priority. On 21 June 2018 Natasha Dobreva, Sentsov’s lawyer at the ECHR and a representative of the international human rights group Agora reported that the ECtHR is asking the Russian authorities to provide all available information about the state of health of Mr Sentsov, on the 38th day of a hunger strike. She said: “The Court sent a request to the Government of Russia on information on compliance with the requirements of articles 2 (the right to life), 3 (prohibition of torture) and 4 (prohibition of forced labor) of the Convention for the Protection of Human Rights and Fundamental Freedoms in connection with [Sentsov’s] hunger [strike].”34
According to Ms Dobreva, the ECHR also asked for the provision of information about Mr Sentsov’s current condition, as well as his medical documentation prior to June 27.
A politically motivated denial of justice?
Despite these recent interventions, it remains the case that Mr Sentsov’s application was lodged with the Court, and given priority status, more than four years ago. A recent comment asks whether the ECtHR is guilty of a political motivated denial of justice.35 The article cites Pavel Chikov, who leads Agora and is another lawyer in the case, as saying that he believes that the Court is taking so long to consider Mr Sentsov’s case because it does not want to address the issue of Russia’s annexation of Crimea. He added that there is no point in
33 https://www.unian.info/politics/10266075-eu-calls-on-russia-to-release-ukrainian-filmmaker-oleh-sentsov- media.html
34 https://www.uawire.org/european-court-of-human-rights-asks-russia-to-provide-information-about-sentsov-s- health
35 Halya Coynash 31 August 2018 “The European Court of Human Rights’ politically-motivated denial of justice for Oleg Sentsov” at http://khpg.org/en/index.php?id=1535462098
expecting a judgment in less than a year and that the ECtHR is somewhere “in the middle” of the process. In fact, even a year seems optimistic as there is no sign of movement at all.
Asked on Hromadske Radio why the ECtHR is taking its time with the case, Mr Chikov suggested that the issue cannot be resolved without addressing the issue of Crimea’s legal status. The Sentsov case is very complex, he says, and unquestionably political. “It concerns the legal status of Crimea which arouses very serious discussion within the Council of Europe and European Court of Human Rights. The European Court is evidently unwilling to raise the issue and give its assessment.” This is despite universal condemnation of Russia’s annexation of Crimea, and findings by authoritative bodies that it was illegal. Halya Coynash added that that it was impossible not to agree with Mr Chikov that the ECtHR’s delaying tactics do not cast them in a good light. While it is not at all guaranteed that Mr Sentsov would be released merely on the basis of an ECtHR judgment, the lack of such a judgment helps Russia continue lying both about the charges against him, and about the fact that he has only Ukrainian citizenship.36
The case of Mr Sentsov is not the only controversial case in which the ECtHR has more than taken its time. In July 2012, the Russian parliament enacted legislative amendments concerning civil society organisations (CSOs), which are collectively known as the ‘Foreign Agents Act’.
Russian organisations receiving any funding at all from any foreign donors, or from other Russian organisations receiving foreign funding, and which engage in ‘political activity’ very widely defined, are required to register as ‘foreign agents’. Any organisation carrying that label is subject to stricter accounting requirements than other CSO, and must report to the Ministry of Justice more frequently on how they spend their funds. Publications by ‘foreign agents’ must be labelled as such; failure to comply with this provision, leads to the risk of substantial fines. The term ‘foreign agent’ implies spying and illicit activity as a result of the term’s usage during the Soviet era. CSOs are faced with a difficult choice: either receive foreign funding and accept the repercussions of the label; or rely exclusively on Russian sources, including presidential or governmental grants, which may result in a loss of independence and self-censorship. In June 2018, according the Ministry of Justice, there were
36 See Halya Coynash 29 June 2018 Halya Coynash “Russia pushes lies and defamation while hiding Sentsov who is reportedly very weak” at http://khpg.org/index.php?id=1530232129
currently 76 NGOs on the ‘foreign agents’ register. A total of 158 groups have been designated as ‘foreign agents’ to date, including 30 which have shut down rather than bear the label, and over 40 which have stopped accepting foreign funding.37
On 6 February 2013 the European Human Rights Advocacy Centre (EHRAC) lodged a “collective complaint” to the ECtHR on behalf of several of the affected CSOs, and altogether there are now 49 applications to the ECtHR38.
However, these cases were not communicated to Russia until 22 March 201739, four years after lodging the application, despite the fact that the Act had been condemned by the CoE’s own Commissioner for Human Rights in 201340 and 201541, the CoE’s Venice Commission in 201442, the Human Rights Resource Centre in 2015, and Amnesty International in 2016. On 5 July 2017 the Commissioner lodged a Third Party Intervention in the case43, as did Amnesty International and the International Commission of Jurists on 3 October 2017.44 On 12 March 2018 EHRAC lodged its Reply to the Russian Government Observations. Again, the case is highly unlikely to be decided for at least a year.
It is not possible to find out what has been going on behind closed doors at the CoE in Strasbourg. But it is clear from the public materials reviewed above that the COE, led by Mr Jagland, is doing everything it can to prevent Russia from “crashing out” of the ECHR system because of sanctions imposed because of the annexation of Crimea. Mr Jagland is on record as insisting that sanctions must be lifted by 2019; and his efforts are greatly appreciated by Russia.
The United Kingdom
37 See European Human Rights Advocacy Centre (EHRAC) 12 March 2018 “The ‘Foreign Agents Act’ is stifling independent civil society”
38 Application no. 9988/13 ECODEFENCE and others against Russia and 48 other applications
41 “Council of Europe Commissioner for Human Rights reiterates his call to bring Russian NGO legislation in line with European standards” 9 July 2015 at https://www.coe.int/en/web/commissioner/-/council-of-europe-commissioner-for-human-rights-reiterates-his- call-to-bring-russian-ngo-legislation-in-line-with-european-standards?desktop=true
His Opinion is at https://rm.coe.int/16806da772
As I indicated at the start, the United Kingdom has joined Turkey and Russia as a state which, in the context of the internal armed conflict in Northern Ireland from 1969 to 1997, is being shown surprising deference by the ECtHR.
During the Troubles in Northern Ireland, the UK government arrested hundreds of men suspected of terrorism as part of “Operation Demetrius” in the summer of 1971. Some 342 people were interned (imprisoned without trial) as part of the Operation. 14 men were chosen for ‘special treatment’ and were taken to a secret interrogation centre. The men were forced to wear hoods and were thrown to the ground from low-flying helicopters while hooded. These 14 men became commonly known as the ‘Hooded Men’. On top of brutal beatings and death threats, the men were then subjected to what would become known as the five techniques, authorised at a high level: Hooding; Stress positions; White noise; Sleep deprivation; Deprivation of food and water. None of the 14 men were ever convicted of any criminal offence.45
The case was investigated by Amnesty International. What they found was shocking. The men were severely beaten, and when they collapsed, the beatings would start again. Some were still black and blue with bruises. Some felt they were on the brink of insanity – one alleged he tried to kill himself by banging his head against some metal piping in his cell. Their findings were clear: this was a case of brutality and torture by the British state.
The Irish government made history by taking the UK government to the ECtHR – the first time a state took a case against another state. This was an “interstate case”. The UK denied torture, but the (former) European Commission on Human Rights disagreed, ruling in 1976 that the UK had tortured the men, a violation of Article 3 of the ECHR. The UK government appealed to the ECtHR, which in 1978 (seven years after the complaints were filed) found that the techniques amounted to ‘inhuman and degrading treatment’ – but not torture.
New information came to light in a television documentary, The Torture Files, by the Irish broadcaster RTÉ in 2014. Files had been discovered in the UK state archives suggesting that the UK had misled the ECtHR in 1978. The documents show that the UK knew that the torture techniques had long-term health impacts on the victims, and had been authorised at the very highest levels of UK government. In 2014, following Judicial Review proceedings initiated by the Hooded Men, the Irish Government requested the ECtHR to revise its 1978
judgment, and to find, on the basis of the new information, that use of the techniques was indeed torture.
On 20 March 2018, the Chamber of the ECtHR, by six votes to one, decided to dismiss the application.46 There was a very strong dissenting opinion by the Irish judge, Síofra O’Leary. She concluded47:
In my view, it was the Court and the Convention system and not the respondent State which was primarily under scrutiny in the context of this revision request. I regret that my colleagues in Chamber were not able or willing to see this. Revision must remain exceptional and requests should, where appropriate, be defeated by the very legitimate and fundamental principle of legal certainty. However, in the present case it is difficult to avoid the impression that it is the Court which has sought to shelter itself behind that principle. By doing so it risked damaging the authority of the case-law which that principle seeks to safeguard and overlooking its own responsibilities pursuant to Article 19 of the Convention. I can only conclude with regret − in a similar vein to my predecessor in the original case – that there is much in the general approach of the original and revision judgments that must discourage Member States from invoking Article 33 of the Convention and, regrettably, much to encourage future respondent States with reference to which that article may be invoked.
In his analysis published on Strasbourg Observers, Dr Alan Greene of Durham University described what had happened as a “missed opportunity”.48 The ECtHR had in his view “… missed an opportunity to correct an historic wrong; one that has had a pernicious effect across the globe.” He added that “… the public interest in this case is particularly salient in light of the fact that the original judgment was utilised by, amongst others, the United States to legitimise and defend what it termed ‘enhanced interrogation techniques’ during the war on terror.”
On 12 June 2018 it was reported that not only the Hooded Men themselves but the Irish Government had requested a referral to the Grand Chamber of the ECtHR – in effect an appeal.49 This request is highly likely to be granted. At the same time, also with the support of Amnesty International, the Hooded Men have a case pending at the Belfast court of appeal, seeking permission to bring a case against former members of the military and the Royal Ulster Constabulary, whom the 14 men claim were responsible for beating and torturing them in 1971 during a mass security clampdown known as internment. Grainne Teggart, Amnesty
46 Ireland v. the United Kingdom, Application no. 5310/71 (request for revision of the judgment of 18 January 1978)
47 Paragraph 77
48 Alan Greene 25 April 2018, at https://strasbourgobservers.com/2018/04/25/ireland-v-the-uk-and-the-hooded-men-a-missed-opportunity/
International’s Northern Ireland campaigns manager, said: “The torture of these men was authorised at the highest levels of government. In line with the UK’s international human rights obligations, those responsible for sanctioning and carrying out torture, at all levels, must be held accountable and, where possible, prosecuted.”50
This is against the background of the group of historic cases from Northern Ireland concerning the inadequacy of the investigation of the use of lethal force by State agents (the so-called “McKerr Group”, which comprises six cases: McKerr, Jordan, McShane, Shanaghan, Kelly and Finucane)51. Patrick Finucane, commonly known as Pat Finucane, was an Irish human rights lawyer, a practising solicitor, who was allegedly killed by loyalist paramilitaries acting in collusion with the British government intelligence service MI5. In all these cases the UK was found by the ECtHR to have violated the right to a prompt and effective investigation following a suspected killing by state agents. Every year CoE’s Committee of Ministers, which supervises the execution of judgments of the ECtHR, records that the UK has so far failed to comply with its obligations.
On 26 June 2018 the United Kingdom Supreme Court was told that the UK government had “subverted the rule of law and obstructed justice” by refusing to hold an inquiry into the 1989 murder of Mr Finucane. Their barrister said that the decision to conduct a paper review meant government officials “have been insulated from further scrutiny”. He added: “The army, police and security service officers responsible for facilitating the murder of a solicitor whose only ‘crime’ was to represent his clients effectively have all been guaranteed impunity.” He said the question for the Supreme Court was whether the refusal to hold a public inquiry “could ever be regarded as compatible with either the rule of law or article 2 of the ECHR [which guarantees the right to life].” The murder was “exactly the kind of case where the court needs to interfere in a hard-edged way to discharge its constitutional obligations and to protect the rule of law, not to mention Mrs Finucane’s human rights,” he said. “Where the
50 https://www.theguardian.com/uk-news/2018/apr/18/hooded-men-seek-northern-ireland-torture-investigation 51 Jordan v the United Kingdom, judgment final on 4 August 2001; Kelly and Ors v the United Kingdom, judgment final on 4 August 2001; McKerr v the United Kingdom, judgment final on 4 August 2001; Shanaghan v the United Kingdom, judgment final on 4 August 2001; McShane v the United Kingdom, judgment final on 28 August 2002; Finucane v the United Kingdom, judgment final on 1 October 2003
See https://publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/13005.htm and http://www.patfinucanecentre.org/european-convention-human-rights/pfc-submission-committee-ministers-re- mckerr-ors-v-uk
executive has subverted the rule of law and obstructed justice, they should not expect the guarantors of law and justice to look the other way.”52
What is the ECtHR for, anyway?
In his recent book The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention,53 Marco Duranti shows on the basis of thorough research that the CoE and ECHR were indeed the brainchild of Winston Churchill, in whose mind acceding to a binding human rights treaty and the jurisdiction of an international court were necessary in the context of the Cold War, as a bulwark against Communism in the shape of the USSR and its allies – and the spectre of socialism in the UK, especially following Labour’s landslide victory in 1945. This was also despite the long Conservative tradition in England, since 1789, of horror at the implications of the Declaration of Rights of Man and of the Citizen.54 The Declaration was regarded by Edmund Burke, Jeremy Bentham, and William Pitt the Younger as at best nonsense and at worst intellectual terrorism.55 Karl Marx declared that “… so-called rights of man, the droits de l’homme as distinct from the droits du citoyen, are nothing but the rights of a member of civil society – i.e., the rights of egoistic man, of man separated from other men and from the community”.56
It is not hard to see that the ECHR is almost word for word the Declaration; and the First Protocol to the ECHR, promulgated simultaneously with the ECHR, contains a right to private property; a right of parents to decide the (religious) education of their children57; and a right to regular elections which has been the basis of excluding a former Communist, my client Tatjana Zdanoka, from standing as a candidate for the Latvian Parliament.58 The
52 https://www.theguardian.com/uk-news/2018/jun/26/finucane-inquiry-refusal-subverted-rule-of-law-court- told, and https://www.bbc.co.uk/news/uk-northern-ireland-44620236
53 Oxford University Press, 2017, at https://global.oup.com/academic/product/the-conservative-human-rights-revolution- 9780199811380?cc=gb&lang=en&
54 See Bill Bowring “England’s terror of the French Revolution: the historical roots of resistance to the Rights of Man and the case against the Human Rights Act” in Frederick Cowell (ed) Critically Examining the Case Against the 1998 Human Rights Act (Abingdon, Routledge, 2017)
55 Jeremy Waldron Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man (Abingdon, Routledge, 2014)
56 Karl Marx On the Jewish Question published in February 1844 in Deutsch-Französische Jahrbücher; at https://www.marxists.org/archive/marx/works/1844/jewish-question/
57 Bill Bowring “Geopolitics and the right to education, and why ‘no person’ is in fact a child” v.26 n.2 (2014) Child and Family Law Quarterly pp.196-215
58 Application no. 58278/00, Grand Chamber judgment of 16 March 2006
Labour Party and the trade union movement were, unsurprisingly, for the most part strongly opposed both to the CoE and the ECHR.
In the cases of the Irish Republicans against the UK, the Chechens against Russia, and the Kurds against Turkey, the ECHR became the means by which peoples in struggle for self- determination could re-awaken the revolutionary content of the Declaration, even though the ECtHR was very reluctant to see other than individual rights.59
Will the ECHR system survive?
59 For a more lengthy presentation of these ideas, see Bill Bowring “Human rights and public education” v.42 n.1 (2012) Cambridge Journal of Education pp.53-66
Thomas Schmidt, ELDH 1
Analysing the state of emergency through international law
- The speaker
- ELDH II
- Co-operation with Turkish lawyers
• The second ÇHD trial starts next Monday
- Legal framework to analyse the state of emergency and the state actions
- State of emergency –
– information of the UN and the Council of Europe
- Derogations from state obligations
- State of emergency – the impact on human rights and the rule of law
- Observations during the state of emergency UN High Commissioner for Human Rights
- Additional observations during the state of emergency Council of Europe – Commissioner for Human Rights
- The end of the state of emergency – normalization ?
- Human rights mechanisms by international and European law
- The European Court of Human Rights
- The International Criminal Court
- The European Union
- State of emergency –
- Some legal conclusion
Thomas Schmidt, ELDH 2
- Welcome and thanks to all organisers, participants and speakers, in particular the Istanbul Bar Assocition
- This conference is a necessary contribution of lawyers to help the victims of human rights violations and of crimes against humanity
- The conference brings together lawyers, judges, academics, medical doctors and journalist. Together they will discuss how to rebuild the judicial system and democracy
- This conference can help to end impunity
- This conference can be a step to „normalize“ the human rigths
situation in Turkey and in Europe
Thomas Schmidt, ELDH 3
- Thomas Schmidt
- German labour lawyer and trade union lawyer from Düsseldorf
- Secretary General of the European Association of Lawers for Democracy and World Human Rights (ELDH)
- Member of the Executive Committee of the German Association of Democratic Lawyers
- At the conference together with Professor Bill Bowring (the ELDH President) and Fabio Marcelli (member of the ELDH Executive Committee) among the founders of ELDH, and several other ELDH colleagues from Austria, Greece, Italy, Spain
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European Association of Lawyers for Democracy and Human Rights (ELDH)
Thomas Schmidt, ELDH 5
European Association of Lawyers for Democracy and Human Rights (ELDH)
- ELDH was founded in 1993
- members in 21 countries, also in Turkey (CHD, ÖHD)
- The activities of ELDH concern human rights, democracy, rights of refugees, anti-racism, the defence of the rights of lawyers, the future of the European Union, the defence of workers and trade union rights, peace
- what is ELDH doing: conferences, tribunals, trial observations in different countries, factfinding missions, statements, visit of prisoners
- Together with other lawyers’ associations in Europe and elsewhere we organize once a year the Day of the endangered lawyer on 24 January. On this occasion demonstrations will be held outside the embassies of the respective country or some other appropriate place. Turkish lawyers were the most active in several different cities. Next year it will be dedicated again to the Turkish lawyers.
ELDH – cooperation with Turkish lawyers
- All the time we had a close and good relationship to Turkish lawyers and lawyers’ organisations
- First members from Turkey: Hasip Kaplan, Eren Keskin
- Later ÇHD and ÖHD, both have been banned by decree. These bans have no legal basis and should be lifted immediately. That could be one sign of normalization.
- Already 4 conferences in Turkey: Istanbul, Diyarbakir, Ankara, Izmir (many conferences in other cities: Athens, Rome, Florence, Paris, Madrid, Berlin, London or Belfast,
- Cooperation with the Istanbul Bar Association: meeting with former Istanbul Dean Prof. Dr. Ümit KOCASAKAL. Lawyers demonstration the evening before the first CHD lawyers trial started on 24 December 2013
- Turkey is not only on our agenda when we are in Turkey. Conferences in Berlin, Düsseldorf, Paris, Brussels. Many of our national organisations do the same.
- Fact finding mission in Diyarbakir in January 2016 during the curfew
- Trials observations i.e. :
- trial against 46 lawyers of the Asrın Law Office (going on since 2012)
- trial against 22 lawyers, members of ÇHD (the first ÇDH lawyers’ trial) (going on since 2013)
- trial against nine board members of the Istanbul Bar Association, among them the former Dean Mr. Kocasakal (all of them acquitted)
Many lawyers’ organisations and bar associations in Europe and elsewhere have been participating in these observation.
• second ÇHD lawyers trial which starts next Monday on 10 September, with 20 accused lawyers, among the ÇHD president, Selçuk KOZAGAÇLI. He is also member of the ELDH Executive Committee.
Thomas Schmidt, ELDH 7
The second CHD trial starts next Monday
- 20 defendants, among them the CHD president
- Opening on 10 September 2018, in Istanbul
- 17 of them in pre-trial detention in 7 different prisons, some of them 6 hours away (in spite of the decision of the court in the first CHD trial to release all of them)
- Mr. Selçuk KOZAGAÇLI and Ms. Yaprak Türkmen in Silivri in solitary confinement for 9 months already (Art. 7 of the ICCPR, Art. 3 ECHR ?)
- I could visit Mr. KOZAGAÇLI in prison together with Robert Sabata in company of a Turkish lawyer
- 8 of the defendants are already accused in the first CHD lawyers trial with more or less the same charges (ne bis in idem, Art. 14, 7 ICCPR, and Art 4 ECHR ?)
- Hearing by videoconference. Court changed its order only on Tuesday
- Opportunity for the court to demonstrate that the state of emergency is over, and that normalization has begun: release from pre-trial detention, termination of the proceeding.
Thomas Schmidt, ELDH 8
Legal framework to analyse the state of emergency and the state actions
1. International law
• Turkey is a state party to the nine core international human rights treaties: CCPR, Torture, treatment of prisoners, Enforced Disappearance,
- Standard setting tools: Basic Principles on the Independence of the Judiciary, Basic Principles on the Role of Lawyers, Guidelines on the Role of Prosecutors
- Turkey is not a state party to the Rome Statute of the International Criminal Court
2. European law
• human rights treaties to which Turkey it is bound as a Member State of the Council of Europe: ECHR, …
Thomas Schmidt, ELDH 9
State of emergency –
– information of the UN and the Council of Europe
• On 21 July 2016, the Government of Turkey notified the United Nations Secretary-General of its derogation from several of its obligations under the International Covenant on Civil and Political Rights. International Covenant on Civil and Political Rights, derogation from obligations contained in articles 2, 3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27.
• At the same time Turkey has submitted a formal notice of derogation from the European Convention on Human Rights (ECHR) as foreseen under Article 15 of the Convention.
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Derogations from state obligations
• derogations allowed during the state of emergency concerns a great number of human rights (effective remedy, liberty, respect for the inherent dignity of the human person, liberty of movement, expulsion of foreigners, fair trial, freedom of expression, right to peaceful assembly, freedom of association, minority rights)
• the derogation allowed is not unlimited. It is only allowed to the extent strictly required by the exigencies of the situation and only for the necessary time to overcome the emergency
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State of emergency – the impact on human rights and the rule of law
1. The annual UN report for 2017 on the impact of the state of emergency on human rights in Turkey, including an update on the South-East
• UN High Commissioner for Human Rights has not been granted access to South-East Turkey in June 2016. The High Commissioner was therefore not willing to request access to the rest of the country unless the initial request was acceded. This has not been done. The High Commissioner initiated human rights monitoring based at the headquarters of OHCHR in Geneva: interviews with victims etc.
2. Council of Europe – Commissioner for Human Rights
• He does not mention any problems visiting Turkey. His last visit has taken place in April 2016, also to Diyarbakir.
3. Many NGO analyses: Amnesty, HRW, ELDH, AED, …
Thomas Schmidt, ELDH 12
Observations during the state of emergency
UN High Commissioner for Human Rights
- constantly deteriorating human rights situation, exacerbated by the erosion of the rule of law.
- many derogations have gone far beyond the necessary, and unrelated to the state of emergency
- Bypassing parliamentary scrutiny and circumventing the Constitutional Court’s appeal procedure Declaration of decrees without involving the parliament by the issued emergency decrees
- Lack of human rights safeguards
- Impunity of and lack of accountability by affording legal, administrative, criminal and financial immunity to administrative authorities
acting within the framework of the decrees.
- Decrees are not subject to judicial review due to the decision of the Constitutional Court of 4 November 2016
- Decrees regulate various matters unrelated to the state of emergency, for instance the closure of civil society organizations (among them also the two member organisations of ELDH: ÇHD and ÖHD/ÖHP) and medical centres, which seems to indicate that they are being used to limit various legitimate activities.
- Interference of the executive with the work of the judiciary and curtailment of parliamentary oversight over the executive branch of Government
- Arbitrary detention of people arrested under state of emergency measures
- Torture and ill-treatment during pretrial detention
- Restrictions of the rights to freedoms of expression and of movement
- Arbitrary expropriation of private property
- Methods of collective punishment targeting family members of individuals suspected of offences under the state of emergency
- Mass dismissals and mass arrests of civil servants, teachers, judges, prosecutors
- Mass arrests, prosecution and prison sentences of lawyers, journalists
- Mass cancellation of passports
Thomas Schmidt, ELDH 13
Additional observations during the state of emergency Council of Europe – Commissioner for Human Rights
- Restrictions to the right of access to a lawyer, including the confidentiality of the client-lawyer relationship for persons in detention, which could affect the very substance of the right to a fair trial, and restrictions to visitation rights (Article 6);
- The scope of the Decree, which concerns not only the coup attempt, but the fight against terrorism in general; both for physical and legal persons, punishments foreseen in the Decree apply not only in cases of membership or belonging to a terrorist organisation, but also for contacts with such an organisation (Articles 1, 2, 3 and 4);
- Simplified procedures to dismiss judges, including judges of the Constitutional Court and Supreme Courts, without any specified evidentiary requirements (Article 3);
- A simplified administrative procedure for the disbanding of further organisations
- A simplified administrative procedure to terminate the employment of any public employee (including
workers), with no administrative appeal and no evidentiary requirements (Article 4);
- Automatic cancellation of passports of persons being investigated or prosecuted, without court order (Article 5);
- Cancellation of rental leases between public bodies and persons considered to be a member of or in contact with a terrorist organisation, a measure that is likely to affect not only the suspects but also their families (Article 8).
Thomas Schmidt, ELDH 14
The end of the state of emergency – normalization ?
- The mass trials against lawyers and other members of the opposition started long before the declaration of the state of emergency and up to now they still continue.
- The peace negotiations were also stopped before the attempted military coup.
- The violent break down of the Kurdish opposition in South-Eastern Anatolia started also before the coup
- The State of Emergency Procedures Investigation Commission had reported on June 22 this year that the number of appeals to the commission regarding the decree decisions has reached 108,905, and 21,500 of them were finalized, among which only 640 were approved to be objected.
- OHCHR concludes that the Commission of Inquiry for State Emergency Practices cannot be considered as an independent body that will guarantee full respect of due process. It regrets the lack of appropriate remedies to address thousands of dismissals of employees, liquidation of thousands of private entities, including health and education institutions, as well as trade unions.
- It seems unlikely that the ECtHR will be able to help them in due time
- Those who are kept in pre-trial detention, or who serve long term prison sentences, among them also
members of parliament
- Many decrees will remain in force, in particular those non related to the state of emergency
- Criminal and financial immunity granted to administrative authorities will remain
- The draft for a new anti-terror bill will keep some national emergency provisions for another years and we don’t know what is going to follow.
Thomas Schmidt, ELDH 15
Human rights mechanisms by international and European law
• United Nations human rights mechanisms, including special procedures of the Human Rights Council and treaty bodies, have regularly raised their concerns with the Government of Turkey through confidential communications, public statements and concluding observations.
• Similar concerns were raised by the human rights mechanisms of the Council of Europe, a large number of international NGOs as well as Turkish civil society and independent media.
Thomas Schmidt, ELDH 16
The European Court of Human Rights
- Individual complaints before the ECtHR have only a very small chance of getting accepted.
- In 2017 the Court dealt with 31.053 applications concerning Turkey, of which 30.063 were declared inadmissible or struck
out. It delivered 116 judgments (concerning 990 applications), 99 of which found at least one violation of the ECHR.
- None of the requested interim measures was granted.
- The ECtHR can only act after domestic remedies have been exhausted, a hurdle made more difficult with Turkey’s establishment of a “State of Emergency Inquiry Commission” in 2017.
- In a conference co-organized by ELDH in February this year the President of the Berlin Bar Association noted that the current state of affairs made it difficult for the ECtHR to gain the trust of Turkey and Turkish citizens. This is certainly true for the great amount of victims of human rights violations.
- another speaker pointed out that the Court is under pressure from the member states to adhere to the principle of subsidiarity
- And one speaker submitted that the ECtHR and Turkish lawyers needed to coordinate and innovate, rather than exclusively relying on previous case law
- In the two cases Alpay and Altan the Court held that for another court to call into question the powers conferred on a constitutional court to give final and binding judgments on individual applications ran counter to the fundamental principles of the rule of law and legal certainty, which were inherent in the protection afforded by Article 5 of the Convention and were the cornerstones of the guarantees against arbitrariness. But most important the court ruled that using one’s freedom expression and exercising the right to criticism must not be met with either arrest or conviction. This decision is binding for all Turkish court.
Thomas Schmidt, ELDH 17
The International Criminal Court
- Although among the human rights violations committed as a result of the failed military coup and the state of emergency countless crimes will have been committed these are not the „most serious crimes“ (Art. 1 Rome Statute) within the jurisdiction of the ICC.
- For crimes committed in South-East Turkey in 2015 and 2016 prominent lawyers esteem that they are amount to crimes against humanity and war crimes as defined by the Rome Statute.
- In a tribunal organised in Paris in March this year in the tradition of the Russel‘s Tribunal the judges confirmed this opinion, even though their judgement was not legally binding. It had rather the character of an expert opinion. But it can be serve as a contribution for an investigation of the Prosecutor of the ICC (Art. 15 Rome Statute).
- The PPT was chosen to consider the charges presented by the Prosecution in the absence of other effective remedies
- Turkey did not sign the Treaty of Rome and there is no realistic expectation that the UN Security Council would refer the situation to the International Criminal Court. And also Art. 15 Rome Statute does not apply, because the crimes have not been committed in a state which is party of the Rome Statute.
Thomas Schmidt, ELDH 18
The European Union
- The European Union would be able to do more to end this human tragedy in Turkey and to prosecute those who are responsible for certain crimes which have been committed.
- And there was a time when it was actively supporting an development in Turkey to strengthen the rule of law
- Now the European Union has other priorities, such as refugees and economic interests
- The EU – refugee treaty is just one example
- And the governments in several European countries don‘t respect human
- However the least the EU could do is to use its influence to achieve the necessary changes as suggested by the UN and Council of Europe human rights bodies
Thomas Schmidt, ELDH 19
Some legal conclusion
- As lawyers we cannot accept that human rights violations and warcrimes have been committed without significant criminal consequences, without compensation for the victims, without fundamental amendments of the law and the constitution
- Turkey must restore the rule of law, release still-detained magistrates and journalists, and lawyers, restore the rights of teachers and magistrates (judges and prosecutors) who have resigned from July 2016, restore freedom of press and information, end the state of emergency and fully implement the European Convention on Human Rights.
- The role of lawyers will be to cast light on the dark side of the moon, to analyse and to pave legal ways for the struggle for rights and freedoms.
- Sometimes lawyers can improve the human rights situation even in small steps . This is also the case for the judges who are in charge of the many trials against lawyers, journalists, judges and political opponents. Now the courts can show their responsibility for the strengthening of the rule of law and the whole judicial system. They can show that the state of emergency is over also on the field of jurisprudence. All these mass trial against lawyers have to be ended, the accused have to be acquitted and compensated.
Thomas Schmidt, ELDH 20
Istanbul, Istiklal Caddesi. The evening before the first CHD-Trial, December 2013
Thomas Schmidt, ELDH 21