ECHR monitoring Turkish rule of law

The judiciary in Turkey has by any standard faced a trying recent period, with the political dominance achieved by the ruling Justice and Development Party (AKP) after 16 years in power calling into question the country’s separation of powers.

No less problematic is Turkey's state of emergency (OHAL) in place since the failed July 2016 coup attempt. Hundreds of thousands have been arrested or removed from their positions under emergency rule, placing a severe strain on the country’s justice system; the fact that many of these are lawyers and judges only exacerbates the problem.

Over 100,000 people have applied to Turkey’s highest judicial body, the Constitutional Court, and the OHAL Commission to report breaches of their rights since the day of the coup attempt.

Meanwhile, the European Court of Human Rights (ECHR) has attracted criticism for turning down over 25,000 Turkish applications for rights infringements on the grounds that the applicants had not exhausted all available legal channels within their own country.

The Council of Europe says that, according to the principle of subsidiarity, cases in Turkey, like all the ECHR’s member states, must be solved in the country’s own courts according to the legal principles set out in the European Convention on Human Rights, and that applications to the ECHR can still be made after verdicts are passed by Turkey’s Constitutional Court or OHAL Commission.

Yet the thousands who have applied to the ECHR after being jailed or losing their jobs see the Turkish courts as neither functional nor fair, and critics of the ECHR say it is simply out to avoid having to deal with a huge influx of new cases.

The Media Law Studies Association (MLSA) President, Evin Barış Altıntaş, and Vice, President Veysel Ok, conveyed these concerns to the Council of Europe during a Jun. 13 meeting with its human rights director, Christos Giakoumopoulos, and spokesperson Daniel Höltgen.

Giakoumopoulos said that, whenever it sees signs of systematic rights abuses or tolerance to rights abuses in the Turkish internal legal channels, or whenever it sees a Constitutional Court verdict being ignored, the ECHR sends the appropriate warning to the Turkish judiciary.

This was a significant point – verdicts passed by the Constitutional Court to free journalists Mehmet Altan and Şahin Alpay, both jailed pending trial on terrorist propaganda charges, were repeatedly ignored by lower criminal courts earlier this year, seemingly at the behest of the Turkish government.

This was one of the most striking examples illustrating the MLSA representatives’ point – that the Constitutional Court and OHAL Commission are far from an effective legal channel, and in light of that, the ECHR had not done enough to counter the unprecedented level repression of press, politicians and civil society under the state of emergency.

It is crucial to note that, even in the cases the ECHR recognises as a priority, it can take one-and-a-half years to reach a verdict, which the Turkish courts may render trivial if they convicts the defendant in the intervening period.

So it was with Mehmet Altan, who was sentenced in February and is now serving a life sentence despite the Constitutional Court’s decision to release him. The ECHR ruled in March that his rights had been violated and ordered the Turkish government to pay compensation to him and Şahin Alpay. But while Alpay was eventually released, Altan’s ECHR application referred only to pre-trial detention, so he remains in prison.

The ECHR representatives remain adamant, however, that it is correct to follow the procedure allowing Turkey’s highest judicial bodies to examine cases before the ECHR does. An earlier intervention would contravene the court’s principle of subsidiarity, and in any case the ECHR has closely and systematically observed Turkey’s legal channels since the coup attempt, said Giakoumopoulos.

Besides the subsidiarity principle, however, the court is also constrained by the fact that it may only act on cases on an individual basis, Höltgen added, and although it recognises the state of emergency as an extraordinary situation, it cannot move as independent political actor.

And while Giakoumopoulos said the ECHR had the capacity not only to process but to make judgements on all individual cases, he insisted that, for the time being, they should first go through Turkey’s legal system with the ECHR monitoring proceedings, including the speed cases are dealt with.

The lengthy periods of pre-trial detention for many defendants like Altan and Alpay, who each spent over 18 months in prison before their trials drew to a close, fall under this scope, and incidents like this will influence the ECHR’s decision on whether the Constitutional Court is effective.

So, for the time being, the ECHR will prioritise severe cases where there are signs of a threat to one’s life, for example through poor conditions in detention, or where there is a serious breach of freedom of expression.

At the same time, the Council of Europe is “insistently” warning the Turkish government it must conform to the principle of the rule of law, said Höltgen.

If it is proven that Turkey is not living up to that principle, said Höltgen, it could no longer be a member state of ECHR; the repercussions of that would be a stinging blow for Turkey’s image.

The opinions expressed in this column are those of the author and do not necessarily reflect those of Ahval.