Council of Europe acknowledges concerns of civil society in Turkey over recent applications

14 June 2018
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Representatives of Council of Europe meet with Turkish association MLSA and agree on vital role of ECtHR and need for improvement

Turkish Media and Law Studies Association (MLSA) came together with Council of Europe (CoE) representatives in Strasbourg in a meeting on June 13, 2018, to voice criticism towards the handling of applications from Turkey by the European Court of Human Rights (ECtHR).

Christos Giakoumopoulos, Council of Europe Director General for Human Rights and Rule of Law, Council of Europe Spokesperson Daniel Höltgen, MLSA Director Evin Barış Altıntaş and General Coordinator Veysel Ok participated in the meeting.

During the meeting, MLSA conveyed the its own concerns as well as those of Turkey’s human rights community regarding recent decisions by the ECtHR, whose effectiveness has come into doubt in Turkey, especially at a time of unprecedented crackdown on the press, civil society, academia and other segments following a failed coup attempt in 2016.

“We are aware of growing criticism from civil society and of the perception that the court isn’t doing enough,” said Mr. Höltgen, adding that the council would be interested in hearing about the concerns of the human rights community in Turkey. The Council of Europe representatives also explained the court’s position on some of the more contentious judgements issued after the coup attempt.    

Court’s vital role

MLSA representatives noted that although they agree with much of the criticism directed toward the ECtHR from Turkish lawyers and civil society, the court is nevertheless of vital importance.

They went on to say that the Strasbourg court’s recent rulings on the applications of Mehmet Altan and Şahin Alpay, which stated that the Turkish Constitutional Court remains an effective domestic legal remedy for victims of human rights violations; the court’s choosing to refer public servants expelled from government jobs after the coup to Turkey’s State of Emergency Procedures Investigation Commission (established in January 2017) and a recent  dismissal of an appeal in the Roboski case where the Turkish fighter jets killed 34 civilians in the southeastern province of Şırnak in 2011 had caused great disappointment.

“The ECtHR is being discussed publicly to an extent that has never happened until now. This involves a particular danger. Although we understand the court’s adamance on protecting its credibility before the Turkish state, we also think it is more important that the court maintains its reputation in the eyes of civil society and the peoples of Turkey,” Lawyer Ok said.

Lengthy detention periods

MLSA representatives cited three main areas of criticism toward the handling of applications from Turkey by the ECtHR. Ok noted that the European Court of Human Rights had taken approximately 18 months to review and finally issue a ruling in the cases of two journalists whose applications had been granted priority; a duration too lengthy at a time when Turkish courts are rapidly handing out sentences.

“This was the case in the trials of Cumhuriyet, Murat Aksoy and others, Kurdish journalists, Mehmet Altan and Kurdish politicians. The court issued a ruling finding the detention of Altan unlawful, but it came after he was given a life sentence for attempting to overthrow the constitutional order. It was too late,” Ok told the CoE representatives.

State of Emergency Commission

MLSA also expressed criticism of the court’s decision to refer applications lodged by civil servants expelled from government agencies after the coup attempt to a special commission established to review such complaints in Turkey. The State of Emergency Commission, which currently has approximately 95,000 applications before it, has so far ruled only on about 600 of them.

“This means the applicants have to wait for the commission first and then for the appeals process to end, which means that they are condemned to a civil death for 4-5 years before they can lodge an application with the court,” Ok said.

Director General Giakoumopoulos said under the European Convention on Human Rights (ECHR), the court cannot rule on returning individuals to their positions as access to public service jobs is not defined as a fundamental right in the convention. However, he mentioned that access to legal review is a fundamental right upon which the court can rule.

“If the court had accepted those cases without referring them to the ad-hoc commission, the outcome would likely have been the establishment of a remedy, which would mean that a similar commission would be set up only after the court’s rulings. Take into account that for those people who have been reinstated to their jobs, this is far more effective than getting a decision from the ECtHR,” he noted.

Constitutional court considered an effective remedy

MLSA noted that although Turkish Constitutional Court in the past had issued many rulings in line with the European Convention on Human Rights, its independence has come into question in the period after the coup attempt. The high court’s strength has also come into question, they noted, recalling that six lower courts had refused to obey constitutional court rulings from 11 January 2017 to release journalists Altan and Alpay from prison on the grounds that their detention had been unlawful.

MLSA argued that rulings such as the court’s rejection of an application filed by Selahattin Demirtaş, the imprisoned presidential candidate of the Peoples’ Democratic Party (HDP) Turkey also indicate that the constitutional court can no longer be considered an effective legal remedy.

“The Demirtaş ruling contravenes earlier case-law established by the constitutional court itself. For example, in the case of Mustafa Balbay and other MPs, the court had found that imprisonment of a parliamentarian is a severe violation of the right to vote and the right to be elected to public office” Ok explained.

With two of its judges in prison and tens of thousands of cases before it and lower courts ignoring its rulings, MLSA representatives said it is hard to understand how the constitutional court can still be considered an effective remedy.

Explaining the court’s position on this issue, Christos Giakoumopoulos stated the Article 35 of the ECHR stipulates that the ECtHR may only deal with cases after all national legal remedies have been exhausted. He added that the evaluation is an ongoing process and that after a while the court might change its view on the effectiveness of domestic remedies in Turkey.

Suggestion to rule on pilot cases

Recalling that the ECtHR had issued “pilot rulings” on several cases that helped resolve thousands of similar cases in Turkey in the nineteen-nineties, Ok said this would be one way to improve the situation regarding applications filed from Turkey after the coup attempt.

Giakoumopoulos said: “The logic of the pilot case is, again, something that will create a remedy to deal with this cases. This is a choice. The court may follow it and therefore you could ask for it.”

Article 18 violation

Lawyer Ok also stated that the ECtHR ruling in cases of journalists and Altan and Alpay stated that the court did not find it necessary to review whether there had been a violation of Article 18, which states that it is a violation of the European Convention on Human Rights to restrict a listed human right for any reason other than the one formally given and allowed under the convention.

He argued that there was ample evidence for Article 18 in the applications of Die Welt journalist Deniz Yücel, who spent a year in prison in Turkey before he was released in what appeared to be a political intervention from Germany’s Chancellor and in the case of the Kurdish political party, HDP’s, Demirtaş. The court has yet to rule on both cases.

Council of Europe representatives said that although it is very difficult, in general, to put forth solid evidence for claims of violations of Article 18, it is not unlikely that such a ruling might be issued by the court, particularly in the case of Deniz Yücel, whose release had the appearance of being caused by a degree of political intervention.

Roboski rejection

MLSA representatives went on to state that the fact that an application was dismissed by the ECtHR on procedural grounds on such a severe violation as the loss of 34 civilian lives in an aggression by Turkish military jets had been a major disappointment for the Turkish human rights community and democrats in the country.

Confirming a judgement from the Turkish Constitutional Court on the same case in 2014, the European Court of Human Rights recently ruled that the applicants had failed to submit essential documents within the time-limit for the examination of the appeal.

However, Ok noted that not all of the documents from the families of the victims were missing and stated that the court could have accepted the case for those applicants whose documents were in order; which was also suggested in a reservation placed by one of the judges in the constitutional decision of 2014.

Conclusions from the meeting

Council of Europe representatives and MLSA both agreed that the exchange had been “substantial and fruitful.” They also agreed that this initial meeting could set a precedent for further meetings.

MLSA Director Altıntaş added: “We see the court as an ally and it is important for us that it functions as a strong court that lives up to its reputation as a guarantor of the rights protected under the convention. Its decisions have real-life consequences for people prison, especially in the cases of those who are subject to excessively long periods of detention. It is important for us to work to enable the court to facilitate the emergency of remedies to the gross human rights violations we are witnessing today in our country.”

“Although we criticize it, we still think that the European Court of Human Rights still has a very important role to play in Turkey in the protection of our rights, even at this difficult time. We believe in supporting the court constructively as its past judgements have led to important transformations in Turkey and we really think it is important that such dialogue continues,” Ok said.