Nate Schenkkan
Jan 18 2018

The Council of Europe after Turkey’s judicial crisis

The shocking lower court rulings of the last several days rejecting the authority of Turkey’s Constitutional Court to hear individual applications have sparked debate over the crisis of the judiciary in Turkey. These discussions include what the Council of Europe (COE) will do in response, especially through the European Court of Human Rights (ECtHR).

Turkey’s Constitutional Court only started hearing individual applications in 2012, in no small part in order to reduce the number of applications to the ECtHR against Turkey. Since the coup attempt, the ECtHR has repeatedly refrained from hearing cases related to the crackdown both because of the individual appeal mechanism, and because of the state of emergency (OHAL) commission that will hear appeals concerning dismissals and closures. With the right of individual application now seemingly annulled, the ECtHR is faced with an urgent question of response where individuals’ rights are being violated, as in the dozens of cases of imprisoned journalists.

To understand the possible impact of these developments on Turkey, it is important to look at similar crises that the Council of Europe and ECtHR have been enduring in recent years with other countries. Most relevant is the case of Ilgar Mammadov v. Azerbaijan.

In January 2013, Mammadov, an opposition politician and blogger, went to the city of Ismayili to report on the aftermath of major protests there. He published his observations on his blog, including with criticisms of the authorities, and was arrested soon after. Eventually he was convicted and sentenced to seven years in prison. Mammadov’s lawyers brought an urgent case to the ECtHR, and in May 2014 – an extremely short response time by the standards of the court – it ruled that Mammadov’s rights had been violated by his detention, which had been unjustified and used to “silence or punish” Mammadov.

Complying with the ruling required releasing Mammadov, but Azerbaijan did not do so. He remains in prison to this day, despite repeated resolutions from the COE’s Committee of Ministers (the council’s executive body) and a thorough investigation into Azerbaijan’s non-response launched by the organisation’s secretary-general.

This December, the COE finally launched formal “infringement proceedings” against Azerbaijan over non-compliance with the ruling. The ECtHR will now decide whether Azerbaijan is in violation of the European Convention on Human Rights due to its non-compliance. If the ECtHR finds a violation, as is likely, Azerbaijan could lose its voting rights in the Council of Europe or even be expelled.

This is the lowest that the COE’s individual relations with a country on the issue of compliance with the convention has gone, but it is in fact symptomatic of a broader crisis with the COE’s role in policing the rule of law.

In recent years, Russia’s Constitutional Court has ruled that the country no longer needs to comply with the ECtHR’s rulings. In addition, the Venice Commission – an expert body attached to the European Court that provides advice on constitutional matters to member states – has faced harsh political attacks from EU members Poland and Hungary for criticising recent reforms to the judiciary. None of these countries are close to expulsion from the COE.

In the case of Azerbaijan, the COE is finally moving to put some teeth behind its strong words. But the fact that it has taken five years since Mammadov was imprisoned – and the exposure of a stunning bribery scheme engineered by Azerbaijan at the COE – to reach this point, shows the limited toolkit available to the COE and the ECtHR once a government decides to reject the authority of the court. Although the European Convention is a legal treaty, and thus enforceable as a matter of law, practically speaking the COE is an unwieldy and divided body that takes years to reach political decisions to enforce its legal requirements. Authoritarian governments know this and are cheerfully ignoring ECtHR rulings when they find them inconvenient.

The law, like any institution, depends on norms for its survival. Once it is fully transformed into a political instrument, there are no means of restoring it except through politics. For Turkish citizens who seek legal recourse to violations of their rights, the ECtHR remains a proper venue that they should pursue. But they should temper their expectations for either the speed or the enforcement of the ECtHR’s rulings, and concentrate their energies on political transformation.