Justicia: Arrest of KISA Director reflects wider European trend of criminalising support for migrants

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Arrest of KISA Director reflects wider European trend of criminalising support for migrants

admin – August 16, 2019 – migration, freedom of association, rule of law, civil society, Justicia

 

Earlier this month, the Executive Director of KISA – Action for Equality, Support, Anti-racism, a member of the JUSTICIA network coordinated by Fair Trials, was arrested for allegedly “obstructing police work” and “attempting to escape lawful arrest,” after offering assistance to a young man, a foreign national, who was being questioned aggressively by the police outside of KISA’s offices in Nicosia, Cyprus. This is the sixth arrest of KISA’s Executive Director over the past two decades, and it is part of a broader crackdown on NGOs assisting refugees and migrants in the context of rule of law backsliding and shrinking space for civil society in the European Union.

“KISA is of the view that this case, the sixth, is part of the criminalisation [process] and [an] attempt to intimidate and retaliate against it for its work in supporting migrant women and protecting human rights,” reads KISA’s statement on the arrest.

After being interrogated by the police, KISA’s Executive Director was accused of “obstructing police work,” an offense which carries a maximum fine of 150 pounds or jail time of one month, or both, and of “attempting to escape lawful arrest and custody,” which carries a prison sentence of up to five years.

Other charges brought against the Director since 2002 have included: illegal fundraising (for an urgent surgery of a migrant domestic worker); the use of megaphones without a licence during a solidarity event; trespassing (to investigate the death of a migrant man at the hands of the police); and rioting during the 13th Rainbow Festival, which was attacked by extreme-right groups. In five out of six cases, charges brought against him were either dropped by the Attorney General or led to acquittal.

In the last case, however, the Director of KISA was fined for “disturbing the peace” when he visited a police station in Nicosia and attempted to urge the police to take action to protect a migrant woman who had been a victim of violence and harassment.

Following the latest arrest of the Executive Director, the police officer also threatened to arrest all other KISA staff, if they published photographs or other material from the scene of the incident. The officer in question had been on KISA’s radar for a while, having received numerous complaints from non-nationals regarding his violent and disrespectful behaviour in breach of their human rights, including fair trial rights. KISA has filed a complaint with the local police watchdog to investigate the conduct of officer in question, but also asked for a broader examination into police abuses.

According to KISA’s press release, the Cypriot government is stifling the work of civil society groups by depriving them of resources and funding. Although the Cypriot police did not issue a press release about the latest arrest of KISA’s Executive Director, local media coverage portrayed his actions and the work of KISA in a negative, defamatory light. Both risk further shrinking civil society space in Cyprus, which could have long-term consequences for the rule of law, freedom of association and fundamental rights in the country.

The number of individuals criminalised for humanitarian activities in the EU has grown tenfold in the past three years, contributing to a general climate of mistrust and suspicion towards civil society. Such prosecutions are often politically motivated so as to defame individuals or civil society actors, to deter solidarity and create a hostile environment for migrants.

Last June, Members of European Parliament in the Civil Liberties, Justice and Home Affairs Committee highlighted in a non-legislative resolution that EU laws are having “unintended consequences” for EU citizens, because they fail to properly distinguish between human smuggling and humanitarian work. They called on EU member states to include an exemption in their national laws for individuals and civil society organisations who assist migrants for humanitarian reasons and to ensure that they are not prosecuted for doing so.

In July 2019, several members of our JUSTICIA network signed a joint statement together with other European and national human rights organisations on the growing number of cases of criminal investigation and prosecution against individuals who provide humanitarian assistance, which Member States are unwilling or unable to provide, despite being obliged to do so according to international and EU law.

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JUSTICIA statement on the new amendment to Polish Code of Criminal Procedure

JUSTICIA statement
on the new amendment
to Polish Code of Criminal Procedure

14 August 2019

The members of the JUSTICIA European Rights Network (a coalition of the European leading civil liberties organizations working on the right to a fair trial) express their deep concerns regarding the compatibility of an amendment to the Code of Criminal Procedure with international law standards, since it will allow public authorities to arbitrarily deprive individuals of liberty and their right to appeal against conviction.

Under the amendment, public prosecutors will have a final say in some cases concerning pre-trial detention. Moreover, the adopted amendment will also allow appeal courts to sentence a person whom a first instance court had previously conditionally discontinued criminal proceedings and imposed probation measures. Furthermore, the amended CCP will not provide for any possibility for such a person to appeal their conviction.

Finally, the adopted amendment will, in some extraordinary cases, allow criminal courts to conduct the evidentiary proceedings without the presence of both the defendant and the defence counsel, even when their absence is justified.

The JUSTICIA European Rights Network considers that none of the solutions adopted in the amendment can be reconciled with the requirements of the right to a fair trial.

Read the letter to the President of Poland here.

JUSTICIA European Rights Network expresses its deep concerns on the decision of Poland to introduce a possibility to sentence a convict for a whole life sentence

14June2019

The members of the JUSTICIA European Rights Network (a coalition of the European leading civil liberties organizations working on the right to a fair trial) would like to express their deep concerns regarding the recent Polish Parliament decision to adopt an amendment to the Criminal Code introducing a possibility to sentence a convict for a whole life sentence.

Pursuant to the newly adopted provision the Criminal Court will have a power to exclude the possibility of conditionalearly release whenever the nature or circumstances of convict’s crime, as well as its personal characteristics, indicate that the convicted person’srelease from prison will result in a permanent threat to the life, health, liberty orsexual freedom of any other person. Moreover, the Court will also be able to make a similar decision in the case of convicts who were previously sentenced to life imprisonment.The JUSTICIA European Rights Network would like to emphasize that these provisions raise serious concerns regarding theircompatibility with the Conventionfor the Protection of Human Rightsand Fundamental Freedoms(the “Convention”). The European Court of Human Rights has on numerous occasionspointed out that all life prisoners cannot be denied a prospect of a release and they should have a possibility to apply for the review of their sentence1.Otherwise, their punishment will result in inhuman treatment violating requirements arising from art. 3 of the Convention. This is also required by other international human rights standards. The International Covenant on Civil and Political Rights, for example,indicates that the essential aim of the penitentiary system should be a prisoner’s reformation and social rehabilitation. Moreover, theCouncil of 1See e.g.: ECtHR judgement (Grand Chamber) of 9 July 2013 in the case Vinter and Others v. the United Kingdom, application no. 66069/09; ECtHR judgement (Grand Chamber) of 26 April 2016 in the case Murray v. Netherlands, application no. 10511/10;ECtHR judgement of 4 October 2016 in the case T.P. and A.T. v. Hungary, application no. 37871/14

Europe Recommendationsindicate conditional release to be available to all sentenced prisoners, including life–sentenced prisoners2.Likewise, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) has indicated its serious reservations regarding countries which have introduced whole life sentence. In the CPT’s opinion,imprisonment for life without any real hope of releasehas constitutesinhumantreatment.3Therefore, the members of JUSTICIA European Rights Network hope that Polish authorities will revoke proposed changes in Criminal Code and ensure compliance of the national system of conditional release with the requirements of the Council of Europe. As a result, we call upon the President of Poland to veto the proposed amendment. The adoption of this law will significantly underminehuman rights in Poland. 2Recommendation Rec(2003)22 of the Committee of Ministers to member states on conditional release (parole)3Situation of life-sentenced prisoners, Extract from the 25th General Report of the CPT, published in 2016, available at: https://rm.coe.int/16806cc447

When It Comes to Race, European Justice Is Not Blind

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When It Comes to Race, European Justice Is Not Blind

In Bulgaria, half of the people in prison in 2015 were Roma. In Estonia, foreigners are disproportionately represented among people being held in pretrial detention. In Greece foreigners who are convicted of a crime receive heavier sentences than Greeks. Roma in Hungary are three times more likely to be stopped and searched by the police, and are less likely than non-Roma to be released awaiting trial.

These alarming findings are highlighted in a new scoping study, produced by the two of us with Justicia, the EU criminal justice reform network, that looked at the treatment of minority groups and non-nationals by the police and justice systems across 12 European Union member states. The conclusion, unfortunately, is that there is a significant level of unfairness in how people are treated, depending on their ethnic background.

This is believed to be one of the first studies of its kind. Despite efforts by the European Union to ensure that EU members apply common standards in their justice system in terms of arrest rights—such as ensuring early access to a lawyer—the question of standards of ethnic or racial bias have not been on the agenda.

There are no European Union–wide regulations that have standardized data collection and monitoring of outcomes in the criminal justice systems, with particular attention to ethnic and racial minorities, and non-nationals.

In addition, in most of the countries covered by the study, there was a lack of ethnic and racial data. Even when this data was gathered, we noticed a lack of consistent methods of their collection and application of concepts of race, ethnicity, and national origin.

For instance, Romania, the Czech Republic, Italy, Spain, Hungary, Sweden, Slovenia, and Estonia gather criminal justice statistics that are broken down by nationality, but mostly in a selective and inconsistent manner. Only the UK has been systematically collecting data on ethnic and racial minorities for the last four decades in different areas of social life, including in criminal justice. This makes it very difficult to monitor the practices and outcomes of criminal justice institutions and poses main challenges in cross-country comparisons due to lack of correlating data.

Despite these challenges, two principal areas of concern emerged from this study.

First, institutional bias. According to the research, stereotypes deeply rooted in the society are reflected in the practice of police officers, prosecutors, judges, and even, sometimes, in the practice of legal aid lawyers.

Researchers have noticed this practice, among others, in Bulgaria, Spain, or Sweden. In Romania, for instance, an independent expert noted that courtroom officials are deeply biased against people they believe are Roma. In Spain, the existence of clear institutional bias was paralleled by the disproportionate representation of non-nationals in crime rates statistics, pretrial statistics, or prison population statistics.

Additionally, implied bias was noted among Italian and Hungarian police officers, as well those in Romania, who during interviews indicated a common belief that all Roma have criminal characteristics. In the UK, police uses ethnic stereotyping as an evident tactic. Black people, for example, are four times more likely to be stopped and searched by the police than white people. Ethnic disparities introduced by stop-and-search, and other forms of police activity, remain significant throughout prosecution, conviction, and sentencing.

Second, the research clearly showed that non-nationals do not enjoy the same level of protection for their rights once they are arrested—principally due to a lack of access to both interpreters, and to information on their procedural rights in their own language. The situation is additionally exacerbated by the lack of effective legal aid provision in the majority of the 12 countries in the survey. While this affects detainees and suspects regardless of their ethnic identity or national status, it clearly becomes a far greater challenge when language barriers are also involved.

The limited methodology employed in this study—which is based largely on a survey of existing research and publicly available statistics supplemented by interviews with informative stakeholders—did not enable us to produce a comprehensive picture of existing disparities and their sources, but rather gave some snapshots of areas of greatest concerns. Yet it clearly demonstrates the extent of an issue that casts a shadow over the European Union’s ambitious efforts to introduce common standards of justice and rights across its member states. Having recognized the problem, it’s time to find ways to fix it.

Justicia: Comparative Report – Ethnic, Racial, or National Disparities in Criminal Justice

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Comparative Report – Ethnic, Racial, or National Disparities in Criminal Justice

 

30 Nov 2018: In 2017, under the existing European Commission Framework Grant for the Justicia Network, Open Society Justice Initiative conducted a small scale, ten-day scoping study to initiate these explorations and obtain an overview of current practices and main challenges as regards ethnic, racial, or national disparities in criminal justice.

The context for this research is that most European Union Member States have very little or no statistical evidence, research or information on how suspects and accused persons belonging to racial or ethnic minorities are dealt with throughout all stages of criminal proceedings and how they experience those proceedings.

The study consisted primarily of a desk review aiming to collect both quantitative and qualitative data and a secondary analysis of empirical data collected through semi-structured key informant interviews. We carried out the scoping study across Spain, Romania, Bulgaria, Slovenia, Estonia, United Kingdom, Czech Republic, Italy, Sweden, Cyprus, Greece, and Hungary. Assessments were completed in the fourth quarter of 2017, and results were presented in country – specific reports.

Most importantly, all twelve European Union Members States at took part in the research established that disparities exist for people of various ethnic, racial, and national origins, at least at some stages of their criminal justice systems and in some form. However, the questions surrounding the real scope of the issue, its sources, impacts on criminal justice proceedings and outcomes, and key points in the criminal justice chain resulting in disparate treatment of ethnic, racial, or national groups could not be answered through this study and as such remain unanswered and in need of further in-depth analysis.

To read the report click the link below.

 

19/12/2017: Civil society calls upon the ECtHR to confirm the unconditional right of access to lawyer in police custody

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Fair Trials intervention highlights essential role of lawyer

19 December 2017

On 20 December 2017, the Grand Chamber of the European Court of Human Rights will hear the case of Beuze v Belgium (no. 71409/10). Its decision in this case will have wide-ranging effects on the right to early access to a lawyer in criminal cases across Europe. The members of the JUSTICIA European Rights Network (a coalition of leading civil liberties organizations in Europe working on the right to a fair trial) believe that this case presents an opportunity for the Court to reinforce the protection of this fundamental human right. The JUSTICIA European Rights Network supports the intervention made by Fair Trials (the global criminal justice watchdog) in the case.

The case concerns a Belgian national, Philippe Beuze, sentenced to life imprisonment for intentional homicide. Mr Beuze was interrogated seven times by the police and twice by the investigating judge, and was denied the assistance of a lawyer each time. Without a lawyer, Mr. Beuze was unable to properly defend himself.

As Mr. Beuze’s case shows, the right to access a lawyer lies at the very foundation of the right to a fair trial and the prohibition against torture and ill-treatment, protected by the European Convention of Human Rights. Without a lawyer, individuals cannot adequately defend themselves; cannot make effective use of the key procedural safeguards, which are provided to suspects and defendants in criminal proceedings, and are open to manipulation and coercion by the state, a fact that has been repeatedly recognized by the Court itself. The case raises important questions regarding the moment at which the duty to provide legal assistance during the initial phase of criminal proceedings arises, and the circumstances under which that duty may be limited.

Unfortunately, the Court’s recent judgements have provided increasingly restrictive interpretations of the right to a lawyer under Article 6 of the Convention on the right to a fair trial. This appears to be a departure from its well-established standards set out in the 2008 case of Salduz v Turkey regarding the right to legal assistance in criminal proceedings, which was reinforced by numerous subsequent judgements, such as Dayanan v. Turkey and Aras v. Turkey (No.2).  In Salduz, the Court held that the right to a fair trial is breached if a lawyer is not provided from the first interrogation by police and if incriminating statements made in the absence of a lawyer are used for a conviction. In Dayanan and Aras the Court found violations of that right solely because the applicants were not allowed effective access to a lawyer during their pre-trial interrogations even though they did not make any incriminating statements.

Sadly, through a series of judgments in the past year – in the cases of Ibrahim v the UK, Simeonovi v Bulgaria and Artur Parkhomenko v Ukraine – the Court has effectively created the possibility that a conviction can be valid where the suspect is questioned without a lawyer (even in violation of the national law) and provides evidence in the course of the questioning, provided that the Court finds the proceedings “as a whole” are fair. This has provided a loophole through which criminal investigators can unlawfully deny a suspect a lawyer without any negative consequences, even when there are no compelling reasons to restrict access to legal assistance.

The Court’s recent case law has caused confusion across Europe. In the nine years since the Salduz decision, numerous criminal justice systems were reformed to guarantee a lawyer at the earliest stages and the European Union enacted a Directive inspired by it: the Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European Arrest Warrant proceedings. Among other things, the Directive seeks to ensure that people are treated equally wherever they are within the EU, guaranteeing the right to a lawyer everywhere and requiring that effective remedies are provided where that right is violated. In addition, the Directive does not condition access to a lawyer on the “overall fairness” of the proceedings.

The more recent case law of the Court threatens fundamentally to undermine this positive progress and to return European criminal justice to the days when your rights differ depending on the country in which you are arrested. We have seen on numerous occasions that the lack of clear rules and the existence of arbitrary restrictions upon early access to legal assistance weaken procedural safeguards, and undermine the fairness of the entire criminal process and its outcomes.

The Beuze case provides an important opportunity for the Court to underline the importance of the right to a lawyer from the outset of police custody, and to align the standards under ECHR and EU law in order to create a comprehensive system of protection of this fundamental right.

Ahead of the hearing before the Grand Chamber, we hope the Court upholds its original approach, and to guarantee that individuals cannot be convicted if were unlawfully denied early access to a lawyer in criminal proceedings. To hold otherwise would, in effect, give license to criminal justice authorities to flout the law, deny access to lawyer to suspects whenever this is most convenient and would unravel nearly a decade’s worth of positive progress across Europe.

Justicia members