AUTHOR
BY LISA JUNG, KAROLINA KISIEL, HELENA PARISE SANVICENTE & AYÇA ZEHRA KARABABA
THIS WEEKS CONCERNS SEVERAL CURRENT HUMAN RIGHTS ISSUES. WE WOULD LIKE TO DEMAND ATTENTION FOR THE SITUATION IN MYANMAR, THE ONGOING ABORTION LAWS DISCUSSION IN POLAND, THE POSITION OF BLASPHEMY LAWS IN THE NETHERLANDS AND THE PROTEST AT A TURKISH UNIVERSITY.
MYANMAR MILITARY COUP POSES NEW THREAT TO HUMAN RIGHTS IN THE COUNTRY
ON MONDAY, FEBRUARY 1ST, 2021, MILITARY FORCES IN MYANMAR HAVE ARRESTED THE NATIONAL AND STATE GOVERNMENTS' CIVILIAN LEADERS AND INSTATED A "ONE-YEAR" STATE OF EMERGENCY. THE ARRESTEES INCLUDE LEADER AUNG SAN SUU KYI, PRESIDENT WIN MYINT, AND SEVERAL DOZEN OTHER SENIOR OFFICIALS. THE CIVILIAN GOVERNMENT HAS BEEN DEPOSED BY INVOKING AN ARTICLE OF THE MILITARY-DRAFTED CONSTITUTION OF 2008. POWER HAS BEEN TURNED OVER TO COMMANDER-IN-CHIEF SR. GEN. MIN AUNG HLAING, MEANING THAT MYANMAR HAS RETURNED TO A MILITARY REGIME, LIKE THE ONE IT WAS UNDER FROM 1966 TO 2011.
THE MILITARY PERPETRATED THE COUP AFTER MONTHS OF CONTESTING THE NOVEMBER 2020 ELECTION RESULTS WITHOUT ANY EVIDENCE. ACCORDING TO THE ELECTION COMMISSION, THE ELECTION WAS WON BY THE NATIONAL LEAGUE FOR DEMOCRACY BY 80 PERCENT OF THE VOTE IN THE POLLS. THE RESULTS WERE DECLARED CREDIBLE AND LEGITIMATE ON JANUARY 29TH, AND PARLIAMENT WAS SET TO CONVENE IN THE CAPITAL, NAYPYIDAW, ON FEBRUARY 1ST. GOVERNMENTS AROUND THE WORLD ARE CALLING FOR THE MYANMAR MILITARY TO RELINQUISH POWER TO THE NLD.
SINCE THEIR TAKEOVER, MILITARY FORCES HAVE CUT TELECOMMUNICATION (INCLUDING ACCESS TO THE INTERNET AND SOCIAL MEDIA) TO SILENCE OPPOSITION TO THE COUP. THEY HAVE ALSO DETAINED SEVERAL ACTIVISTS AND SENIOR LEADERS OF THE NLD ACROSS THE COUNTRY. THE MILITARY HAS IMPOSED ARBITRARY LIMITS ON FREEDOM OF EXPRESSION, INFORMATION, ASSEMBLY, AND ASSOCIATION, MAKING MANY WARY OF TAKING TO THE STREET. TEACHERS, DOCTORS, AND OTHER PROFESSIONALS HAVE GONE ON STRIKE TO EXPRESS THEIR OUTRAGE AND DEMAND THAT THE ELECTION IS RESPECTED.
MYANMAR'S MILITARY FORCES HAVE A LONG HISTORY OF HUMAN RIGHTS ABUSE. THIS HISTORY DOES NOT ONLY INCLUDE VIOLENT AND EXCESSIVE USE OF FORCE ON PROTESTORS AND OPPOSITION, BUT SEVERAL SENIOR OFFICIALS AND MEMBERS OF THE NEWLY IMPOSED GOVERNMENT ARE DIRECTLY LINKED TO A LONG LIST OF CRIMES. FOR EXAMPLE, SR. GEN. MIN AUNG HLAING IS IMPLICATED IN CRIMES AGAINST HUMANITY COMMITTED IN 2017 AGAINST THE ROHINGYA MUSLIMS DURING SO-CALLED "CLEARANCE OPERATIONS" AND CRIMES AGAINST HUMANITY EXECUTED IN MILITARY OPERATIONS AGAINST THE KACHIN, SHAN, RAKHINE, AND OTHER ETHNIC MINORITIES. LT. GEN. TUN TUN NAUNG, LT. GEN. SOE HTUT, AND GEN. MYA TUN OO ARE OTHER EXAMPLES OF MILITARY-APPOINTED SENIOR GOVERNMENT OFFICIALS THAT HAVE OVERSEEN AND PERPETRATED CRIMES AND ABUSES OF HUMAN RIGHTS AGAINST CIVILIANS AND PEOPLE OF ETHNIC MINORITIES DURING THEIR CAREER.
AMNESTY INTERNATIONAL'S DEPUTY REGIONAL DIRECTOR FOR CAMPAIGNS, MING YU HAH, SAID ON MONDAY (FEBRUARY 1ST): "THE ARREST OF AUNG SAN SUU KYI, SENIOR OFFICIALS AND OTHER POLITICAL FIGURES IS EXTREMELY ALARMING. UNLESS THOSE DETAINED CAN BE CHARGED WITH A RECOGNIZABLE CRIMINAL OFFENCE UNDER INTERNATIONAL LAW, THEY MUST BE IMMEDIATELY RELEASED. […] THIS IS AN OMINOUS MOMENT FOR PEOPLE IN MYANMAR AND THREATENS A SEVERE WORSENING OF MILITARY REPRESSION AND IMPUNITY. THE CONCURRENT ARRESTS OF PROMINENT POLITICAL ACTIVISTS AND HUMAN RIGHTS DEFENDERS SENDS A CHILLING MESSAGE THAT THE MILITARY AUTHORITIES WILL NOT TOLERATE ANY DISSENT AMID TODAY'S UNFOLDING EVENTS".
THE POLISH ANTI-ABORTION VERDICT OFFICIALLY PUBLISHED
ON THE 27TH OF JANUARY, THE CONSTITUTIONAL TRIBUNAL’S OF POLAND ANTI-ABORTION VERDICT HAS BEEN OFFICIALLY PUBLISHED IN THE JOURNAL OF LAWS. THE NEW VERDICT BANS ABORTION IN POLAND ALMOST ENTIRELY. SINCE ITS PUBLICATION, IT IS NOT ALLOWED TO CARRY OUT ABORTION IN CASE OF FETAL IMPAIRMENT ANYMORE. THE PROTESTS HAVE STARTED AGAIN ON FRIDAY AND HAPPENED IN EVERY BIGGER CITY OF POLAND FROM KATOWICE TO GDAŃSK. MILLIONS OF POLES HAVE AGAIN COME OUT TO THE STREETS AND SHOWED THEIR DISAPPROVAL TOWARDS THE VERDICT. THE FORMER OMBUDSMAN OF POLAND, ADAM BODNAR, EMPHASISES THAT THE NEW ANTI-ABORTION VERDICT WILL AFFECT ESPECIALLY DESTITUTE WOMEN AND FAMILIES. IT IS COMMON FOR RICHER WOMEN TO TRAVEL TO THE NEIGHBOURING COUNTRIES (ESPECIALLY THE CZECH REPUBLIC AND GERMANY) TO CARRY OUT AN ABORTION LEGALLY. HOWEVER, IF A WOMAN IS NOT RICH ENOUGH, SHE WILL BE FORCED TO EITHER CARRY THE PREGNANCY OR GET AN ABORTION ILLEGALLY IN POLAND VIA BACKSTREET ABORTION INDUSTRY. THE LATTER OPTION MAY IMPOSE SEVERAL DANGERS TO HER LIFE, BOTH LEGAL AND MEDICAL.
INSULTING RELIGIOUS FIGURES; STILL PUNISHABLE IN THE NETHERLANDS?
THE MURDER OF THE FRENCH TEACHER SAMUEL PATY HAS ALSO RESULTED IN EXTENSIVE PUBLIC DEBATE IN THE NETHERLANDS. ALTHOUGH SOMEWHAT OVERSHADOWED BY THE CURRENT CORONA CRISIS, THERE IS STILL A DEBATE ABOUT THE BALANCE BETWEEN FREEDOM OF EXPRESSION AND FREEDOM OF RELIGION. IS INSULTING RELIGIOUS FIGURES IN THE NETHERLANDS STILL INDIRECTLY PUNISHABLE?
FREEDOM OF RELIGION IS PROTECTED IN ARTICLES 6 OF THE DUTCH CONSTITUTION (DC) AND 9 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR). TO BE REGARDED AS A RELIGION, THERE MUST BE A COLLECTION OF VIEWS THAT MEET THE CONDITION "TO ATTAIN A CERTAIN LEVEL OF COGENCY, SERIOUSNESS, COHESION AND IMPORTANCE". HOWEVER, DUE TO INCREASING RELIGIOUS EXTREMISM AND RELIGIOUS PLURALISM, AS A RESULT OF LARGE-SCALE MIGRATION, THERE IS ALSO A NEED TO DETERMINE WHETHER ART. 6 DC AND 9 ECHR ALSO PROTECT THE POSITION OF RELIGIOUS FIGURES. IN PRINCIPLE, THE RIGHT INCLUDES THE RIGHT TO HAVE OR NOT HAVE A RELIGION OR BELIEF, TO CHANGE ONE'S RELIGION, TO WORSHIP IT AND TO BEHAVE ACCORDING TO THE PRECEPTS OF ONE'S RELIGION. AT FIRST GLANCE, RELIGIOUS FIGURES ARE NOT INCLUDED, ALTHOUGH THE TERM WORSHIP OFFERS SOME SCOPE. THE ECTHR STATES THAT TO SPEAK OF "WORSHIP", THERE MUST BE A "SUFFICIENTLY CLOSE AND DIRECT NEXUS" BETWEEN THE CONDUCT AND THE RELIGION. RELIGIOUS FIGURES DO NOT SEEM TO FALL WITHIN THIS PARAMETER EITHER.
FREEDOM OF EXPRESSION IS ALSO INCLUDED ON NATIONAL, ART. 7 DC, AND EUROPEAN LEVEL, ART. 10 ECHR. ART. 7 DC ALSO EXTENDS, ACCORDING TO THE VAN DIJKE JUDGMENT, TO IDEAS THAT ARE NOT CONSIDERED DESIRABLE BY THE MAJORITY OF THE POPULATION. THE ARTICLE IS ALSO MORE NARROWLY FORMULATED THAN THE ECHR IN THE SENSE THAT DUTCH LEGISLATION ONLY ALLOWS AN INTERRUPTION OF RADIO AND / OR TELEVISION AFTERWARDS OR DURING THE BROADCAST. IN THE NETHERLANDS, WE THEREFORE ASSUME A STRICT BAN ON PRIOR CENSORSHIP. MOREOVER, THERE IS ALSO A PRINCIPLE OF PARLIAMENTARY IMMUNITY FOR STATEMENTS MADE WITHIN THE HOUSE OF REPRESENTATIVES. AT EUROPEAN LEVEL, ART. 17 ECHR IS VERY IMPORTANT WITH REGARD TO ART. 10. THIS ARTICLE STATES THAT NO RIGHT IN THE TREATY IMPLIES A RIGHT TO COMMIT ACTS FOR THE PURPOSE OF NULLIFYING THE RIGHTS OR FREEDOMS OF OTHERS. HOWEVER, THIS ARTICLE APPLIES ONLY IN EXTREME CIRCUMSTANCES, SUCH AS IN A CASE IN WHICH A PERSON CALLED FOR THE ARMED JIHAD IN SYRIA, WHICH CALLED FOR TERRORIST OFFENSES.
ALTHOUGH INSULTING RELIGIOUS FIGURES IS IN PRINCIPLE NOT PROTECTED BY THESE ARTICLES, ECTHR CASE LAW SHOWS THAT JUDGES OFTEN STEP IN HERE. FIRST OF ALL, IN CASES SUCH AS KOKKINAKIS AND HANDYSIDE IT HAS BEEN DETERMINED THAT BOTH RIGHTS SHOULD BE REGARDED AS THE FOUNDATIONS OF A DEMOCRATIC SOCIETY. TWO FACTORS THAT APPEAR TO BE IMPORTANT IN CASE LAW ARE THE ROLE OF THE SPEAKER AND THE NATIONAL CONTEXT. WITH REGARD TO THE SPEAKER, A SPECIAL ROLE IS ASSIGNED TO POLITICIANS, JOURNALISTS/MEDIA AND TEACHERS. IN FÉRET/BELGIUM IT WAS ARGUED THAT A POLITICIAN HAS AN INCREASED RESPONSIBILITY. FÉRET ADVOCATED FOR RACIAL DISCRIMINATION, WHICH WAS NOT COVERED BY HIS POLITICAL IMMUNITY. REGARDING JOURNALISTS AND THE MEDIA, IN THE OTTO-PREMINGER-INSTITUT /AUSTRIA AND WINGROVE /UNITED KINGDOM CASES IN THE 1990S, GOVERNMENT’S ARGUMENTS AGAINST BLASPHEMY WERE QUICKLY ACCEPTED BY THE COURT. HOWEVER, IN JERSILD/DENMARK THE COURT DEPARTED FROM THIS APPROACH AND STATED THAT THE DISTRIBUTION OF INFORMATION SHOULD BE PROTECTED AS WELL, INCLUDING ALL ITS FORMS. FINALLY, TEACHERS, SUCH AS IN SEUROT /FRANCE, WERE GIVEN AN INCREASED DUTY TO ALSO CONVEY THE AUTHORITY THEY SYMBOLIZE IN PERSONAL STATEMENTS. IN ADDITION, THE NATIONAL CONTEXT APPEARED TO BE IMPORTANT FOR THE INTERPRETATION OF THE SO-CALLED "MARGIN OF APPRECIATION".
AS A RESULT, THERE IS A THREE-TIERED APPROACH IN EUROPE TO HATE SPEECH. FIRST OF ALL, IT WAS DETERMINED IN LEHIDEUX AND ISORNI / FRANCE AND GARAUDY / FRANCE THAT ARTICLE 17 ECHR BY DEFINITION EXCLUDES A BALANCE BETWEEN RIGHTS REGARDING DENIAL OF THE HOLOCAUST. IN ADDITION, RACIST LANGUAGE IS IN PRINCIPLE PROTECTED BY FREEDOM OF SPEECH, ALTHOUGH THESE MATTERS ARE OFTEN INADMISSIBLE ON THE BASIS OF ART. 17 ECHR. FINALLY, IT APPEARS THAT RELIGIOUS INTOLERANCE, AS IN JYLLANDS-POSTEN AND CHARLIE HEBDO, ONLY FALLS WITHIN THE SCOPE OF FREEDOM OF EXPRESSION IF THE STATEMENTS ADD SOMETHING TO THE PUBLIC DEBATE, SEE HERE I.A./TURKEY. ALTHOUGH RELIGIOUS FIGURES ARE NOT DIRECTLY PROTECTED BY THE ARTICLES, CASE LAW SHOWS A SIGNIFICANTLY DIFFERENT APPROACH.
BOĞAZIÇI UNIVERSITY PROTEST PRESIDENT ERDOĞAN ISSUED A DECREE ON JANUARY 1. WITH THAT DECREE PROF. DR. MELIH BULU WAS APPOINTED AS THE RECTOR OF BOĞAZIÇI UNIVERSITY. BOTH STUDENTS AND FACULTY MEMBERS OF THE UNIVERSITY REACTED TO THIS DECISION. BOĞAZIÇI UNIVERSITY FACULTY MEMBERS AND STUDENTS STARTED TO HOLD PROTESTS DEMANDING BULU'S RESIGNATION AND ELECTION OF THE RECTOR. TAKING EXTENSIVE SECURITY MEASURES AROUND THE CAMPUS, THE POLICE DID NOT ALLOW STUDENTS TO ENTER. IMAGES OF HANDCUFFS BEING ATTACHED TO THE UNIVERSITY DOOR DURING THESE PROTESTS WERE SHARED BY MANY PEOPLE ON SOCIAL MEDIA. DURING THE PROTEST, AN EXHIBITION OPENED ON THE CAMPUS. MORE THAN 300 PEOPLE SENT THEIR WORKS FOR THE EXHIBITION. HOWEVER, REACTIONS TO THE IMAGE WITH THE KAABA FIGURE, INITIATED A PROCESS THAT LED TO THE TARGETING OF THE LGBTI COMMUNITY AND BEING SHOWN RESPONSIBLE FOR WHAT HAPPENED. FIVE PEOPLE WERE DETAINED IN THE OPERATION HELD AT THE WEEKEND. TWO OF THESE PEOPLE, WHO WERE DECLARED TO BE BOĞAZIÇI UNIVERSITY STUDENTS, WERE ARRESTED, AND OTHER TWO PEOPLE WERE PLACED UNDER HOUSE ARREST. POLICE MADE A HARSH INTERVENTION ON THE UNIVERSITY CAMPUS DURING THE PROTESTS ON MONDAY, FEBRUARY 1, TO PROTEST THESE ARRESTS. 159 PEOPLE WERE DETAINED IN THE PROTESTS. SEVEN OF THESE PEOPLE WERE RELEASED AFTER POLICE INTERROGATIONS, BUT WERE LATER DETAINED BY THE POLICE OF THE ANTI-TERRORISM BRANCH DIRECTORATE. PROTESTS, WAS STARTED TO BE GIVEN SUPPORT FROM DIFFERENT UNIVERSITIES IN TURKEY. HOWEVER, THE POLICE INTERVENED HARSHLY AGAINST THESE ACTIONS.THOSE WHO CAME TOGETHER TO SUPPORT THE BOSPHORUS RESISTANCE IN ISTANBUL KADIKÖY ON TUESDAY, FEBRUARY 2, FACED HARSH INTERVENTION BY THE POLICE. MOST OF THOSE DETAINED DURING THE INTERVENTION WERE RELEASED. HOWEVER, 23 OF THE DETAINEES WERE TAKEN TO THE ISTANBUL COURTHOUSE IN KARTAL AFTER THE SECURITY PROCEDURES. OF THE 23 PEOPLE WHOSE STATEMENTS WERE TAKEN YESTERDAY AT THE PROSECUTOR'S OFFICE, 10 WERE SENT TO ARREST AND 13 OF THEM WERE REFERRED TO THE JUDGE ON THE CONDITION OF JUDICIAL CONTROL. THE CRIMINAL MAGISTRATE'S OFFICE RULED THAT 11 PEOPLE BE UNDER HOUSE ARREST, NINE PEOPLE ARE BANNED FROM GOING ABROAD, AND ONE PERSON IS SUBJECT TO JUDICIAL CONTROL MEASURES. THE COURT DECIDED TO ARREST ŞILAN DELIPALTA AND ANIL AKYÜZ ON THE GROUNDS OF "OPPOSING LAW NO. 2911 ON MEETINGS AND DEMONSTRATIONS". PROTEST IS A CONSTITUTIONAL RIGHT. THE FACULTY MEMBERS AND STUDENTS OF BOGAZICI UNIVERSITY (ALSO OTHER STUDENTS WHO WANTS TO GIVE SUPPORT TO BOĞAZIÇI UNIVERSITY STUDENTS) WERE DETAINED AND ARRESTED WHILE EXERCISING THEIR CONSTITUTIONAL RIGHTS.
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