Can the ECtHR provide an effective remedy following the coup d’état and declaration of emergency in Turkey?

The question posed in the title of this post has been discussed in various blogs suggesting that recent decisions of the ECtHR rejecting cases for non-exhaustion of domestic remedies have been politically motivated.  I recently discussed this issue at a meeting organised by the Law Society in conjunction with the German Bar Association (DAV) in Berlin on 5th March 2018. 

Let me say from the outset that I will argue that this question, for someone who has worked for many years with the Court (ECtHR) and who has dealt with many Turkish cases, is not the right question to ask.

From my perspective, the right question to ask is not whether the Court is capable of offering an effective remedy to Turkish citizens – of course it is – BUT rather when, and under what circumstances, will the Court offer such an effective remedy? 

As you can readily appreciate, this is a more positive formulation which better accords to reality.  After all, we would not doubt the capacity of the UK Supreme Court or the German Constitutional Court to offer effective remedies for violations of fundamental rights. So, why should we doubt the capacity of the European Court to do so given its proven track record of upholding Convention (ECHR) principles, often in the face of vitriolic criticism from states and others?

Subject to that reservation, I make the following remarks about the matter.

My starting point in this argument is that the Court has been constantly involved in the adjudication of Turkish cases since the 1970’s. Many thousands of cases have been examined.  HUDOC- the Court’s case law search engine- records some 9600 judgments.  There have been many hundreds of violations recorded. The former Commission of Human Rights has carried out 37 fact-findings in Turkey concerning egregious human rights violations.

Many of the judgments against Turkey have been leading judgments in their field, contributing valuable principles to the corpus of international human rights law in areas as diverse as torture, killings, disappearances on the one hand and freedom of expression, the banning of political parties, the destruction of villages, expropriation of property, fair trial and the death penalty on the other. The Convention is of such importance to the Turkish legal system that every year, Turkish judges and prosecutors come to the Court’s headquarters to gain first-hand knowledge of the case law.  This practice has continued after the July 2016 coup d’état with the most recent visit taking place in December 2017. At one point many years ago, there were so many key Turkish cases being decided in Strasbourg that the authorities in Turkey spoke of the Court as being Turkey’s Constitutional Court (CC).  It was as a result of this long involvement in high profile cases that Turkey introduced a CC with a right of individual petition modeled on the Strasbourg system. A remedy which the Court recognised as effective in 2014 for complaints inter alia concerning unlawful detention.

Other parts of the Council of Europe have constantly engaged with Turkey since the coup; the Secretary General (SG) and the Venice Commission have both stressed the importance of compliance with the rule of law and the principle of proportionality rooted in Article 15 ECHR.   The Venice Commission has issued several important opinions concerning legislative decrees issued by the Government under its emergency legislation. Whilst acknowledging the right of a democratically elected government to defend itself, including by resorting to emergency government, the Venice Commission has also emphasised that measures such as mass closures of media outlets on the basis of emergency decrees, without individualised decisions, and without the possibility of timely judicial review, are unacceptable under international human rights law. These efforts have led to the setting up of a Commission to examine complaints from those adversely affected by the decrees with the possibility of appeals to the administrative, and subsequently, the Constitutional Court.

So, what are the reasons for believing, against this history of continuous direct involvement in the protection of human rights in Turkey, not only of the Court but of the Council of Europe as a whole, that the ECtHR would now seek to abandon its traditional judicial role in Turkish cases or would no longer be able to afford an effective remedy in cases that are calling out for one?

There are three main arguments that are being advanced by the Court’s detractors.

The most important argument is a legal one, namely that the Court has rejected four applications raising issues concerning dismissals of judges and civil servants in 2016 and 2017 for non-exhaustion of domestic remedies. The cases are Mercan (Hudoc Nov 2016), Zihni (Nov 2016) Catal (March 2017) and Koksäl (Nov 2017)]. The dates are important because the last ECtHR decision that considered the CC to be an effective remedy was in March 2016 and the attempted coup took place in July 2016.

Koksäl is the most important decision because the Court required the applicant to first bring his complaint to the new Commission (which was on the point of being set up as a result of the initiative of the SG and the Venice Commission) tasked with the role of examining dismissals individually and having powers of reinstatement.  Rejections by the Commission can be appealed to the administrative court and then the CC.  For the Court, mere doubts as to the prospects of success of these remedies was not sufficient to dispense the applicant from having recourse to them.  

These decisions have provoked considerable criticism and bewilderment in certain quarters, and have even been dubbed as politically motivated decisions to pacify Turkey and examples of excessive formalism in the face of a dire situation! 

They can doubtless be criticised on various grounds: the applications had not been communicated to the Government for observations; there was no real discussion as to what might be called the chilling effects of the emergency regime  – involving the suspension and arrests of thousands of judges and prosecutors, including two members of the CC – on the independence and impartiality of the remaining members of the Turkish judiciary; the Commission is a non-judicial body that had not actually come into force when Koksäl was decided.

However, the fact remains that none of these applicants sought any remedy in their own courts before coming to Strasbourg, which is surprising because in three of the cases they were complaining that they did not have access to a court to test their suspensions.  Why was this so?  Obviously, after the declaration of the state of emergency they no longer trusted their own courts. But this is not a valid excuse in such situations.  The European Court’s case law is clear that it is only in highly exceptional cases that it has been prepared to find that there exists special circumstances dispensing applicants from seeking a domestic remedy. 

The exhaustion rule is a jurisdictional norm of the highest importance in the Court’s case law and is a central component of the foundational notion that the Court’s role is subsidiary to that of the national courts.  It is the national courts which must first be given the opportunity to examine allegations of human rights violations.  It is a first order principle in the Convention, Art 35 para 1, which states that the Court shall not DEAL WITH complaints where domestic remedies have not been exhausted in accordance with generally recognised principles of international law.  Many very high-profile cases in most countries have fallen at this hurdle, including very serious complaints in some inter-state cases.

One could take the view that when there are gross violations of human rights, remedies tend to be side-stepped or rendered ineffective by the difficulties of securing probative evidence.  This was the position taken by the former Commission in the Greek case in the 1960’s. However, it is difficult for the Court to assume that there are gross violations or administrative practices in breach of Convention rights when these issues have not yet been determined by the Court.  There needs to be clear evidence that the court system is not functioning properly as there was in the Greek case and, as discussed in the Berlin meeting, such evidence (as opposed to repeated claims) needs to be presented to the ECtHR to challenge the effectiveness of remedies.  And that evidence is only beginning to emerge now in early 2018, but not in 2016 and 2017 when these decisions were taken.

These cases have not occurred in a conflict or war zone such as SE Turkey in the 1980’s or Chechnya, Nagorno Karabakh, Transnistria or Greece under the dictatorship of the colonels in the 1960s – where real impediments, including the risk of reprisals, existed to accessing the courts to seek remedies. 

Moreover, the Court has in many judgments and decisions prior to July 2016 recognised time and again that the CC provided an effective remedy to be exhausted before coming to Strasbourg.  Is it realistic to expect the Strasbourg Court to suddenly change its case law so soon after the coup – even a year after the coup – without having a solid objectively established basis on which to do so? 

In a significant development that suggests that the CC has remained an independent body, (even if at the end of the day its judgment was ultimately thwarted), that court (in a judgment of January 2018) found in favour of two journalists – Mehmet Altan and Sahin Alpay – holding that their detention contravened the freedom of the press and ordered their release.

There are other factors that must be borne in mind when assessing these decisions. The first is that Strasbourg has not shut its doors irrevocably to these applicants.  It remains open to their lawyers to file new complaints in Strasbourg if they lose before the Turkish courts. The second is that the Court has made it clear in the Koksäl decision that it will keep under review, in the light of experience, whether the Commission that has been set up is Convention compliant.  So, the burden remains on the government to demonstrate in future cases that this remedy actually works effectively in practice. 

The two remaining arguments are essentially political arguments. They suggest that the decisions are politically motivated. The first emphasises that Turkey has become a vital ally for Europe and is entitled as any other state to defend itself from attacks from within. Turkey’s support is vital in the fight against ISIS and in coming to terms with the refugee crisis. It is currently host to 3.2 million refugees, which is probably the largest number of refugees in any country. There is thus a certain pressure to be more tolerant to the internal political problems that Turkey is facing and its emergency responses.  The second political argument is institutional in nature. The Court is under pressure from the member states to adhere to the principle of subsidiarity – a key feature of which is the requirement to exhaust domestic remedies. By rejecting these four cases, the Court was able to reject in summary form a large number (25000+) of similar cases.

Both of these arguments are problematic.  Justice should not be a cloistered virtue and criticism is to be expected and welcome. Yet it is difficult for any court and much more difficult for an international tribunal – which unlike the national court does not have a natural constituency to spring to its defence – to counter accusations of political maneuvering, or even to stand up for itself generally.  It cannot enter the political fray and respond openly to its accusers.  It is obliged to stand on the touch line and grit its teeth in the face of uninformed or malignant comment, sometimes from self-interested or even political quarters.  Its best defence lies in the quality of its judgments and decisions as well as their consistency.  The Court is not a political body. It is not composed of political actors. The judges take an oath to behave independently and impartially just like judges in national courts. Even if they remain, as human beings, subject to a myriad of influences they must operate in a collegium and be seen by their colleagues and the international community to apply the rules justly. 

The Court has earned its badge of independence over many years in dealing with high-profile cases coming from Chechnya, Northern Ireland, Russia, Turkey, Ukraine and Georgia, – to name but a few.  Are these to be seen as political judgments too?  When the Court adjudicates on a case it does so on the basis of its legal merits with reference to what has been decided in previous cases just like national courts.  The exhaustion of domestic remedies rule has not been invented to help the Court with its case docket (even if it has this effect) or to avoid taking difficult unpopular decisions.  Nor is it so malleable a notion that it can be wielded to political effect by sweeping the undesirable under the judicial carpet. If it were that easy, the Court would have over the years, a considerably lighter case docket. It is a rule of the Convention set out in Art 35 para 1 ECHR and has been the subject of extensive interpretation since the system was set up sixty years ago. I would contend that the real political decision in these cases would have been to reach exactly the opposite conclusions on the basis of claims alone and in the absence of solid evidence. And if the Court had been motivated by political considerations then why use the exhaustion rule to dismiss the cases when this permits the applicant, unlike rejection as manifestly ill-founded, to come back to the Court after trying to seek a remedy before the courts?

Let us be realistic. If the Court wished to avoid taking unpopular decisions it would not be the subject of such recurrent attacks from politicians in certain Convention-allergic countries.

Yet for all that, the situation in Turkey continues to disturb. Her credentials as a rule of law state seem to be in tatters today with so many journalists and others in prison and countless thousands of civil servants and teachers having been suspended or dismissed and deprived of their passports.  It is questionable whether the right of individual petition can be relied on to provide a remedy when the state seems to be in a downward spiral and mass human rights violations appear to be occurring under the guise of a political emergency and the right of the state to defend itself.  The life of the nation is being threatened arguably by the very measures that have been decreed to save it.  Under the ECHR it is up to the states to lodge a collective action (an inter-state case) when confronted with alleged breaches of the public order of Europe. But there is no sign of this happening and such is Europe’s dependence on Turkey to solve its refugee problem that it is unlikely to happen. The days when states sought to uphold European public order without having a specific interest to defend as in the 1980’s appear to be over. If this is correct, then the drafters of the Copenhagen Declaration should be reminding all stakeholders that for the ECHR to remain an effective human rights instrument, it is imperative for states to act collectively and in a disinterested fashion when confronted with credible evidence that an ECHR country is detaching itself from the rule of law and apparently impeding national judges from upholding it.

In conclusion I come back to my point that the only question of relevance is, when and under what conditions the Court can provide a remedy for Turkish citizens? Today we may have an answer to that question although, an answer that comes from the fruit of a poisoned tree.

The Court has a large number of Turkish detention cases on its docket.  Many of these concern journalists who complain of violations of Articles 5 and 10.  The Court considers these cases to have priority because the vital watchdog functions of the press are imperiled when journalists are imprisoned, especially in an emergency situation where many of the traditional safeguards of the rule of law have been suspended. 

The fate of these cases depended on the outcome of the case brought to the Turkish CC by the applicants Mehmet Altan and Sahin Alpay.  As we know, the CC to its credit found in favour of these applicants but amazingly, a lower court considered that the CC did not have jurisdiction to order their release.  Accordingly, in these types of cases the effectiveness of the CC remedy can now be called into question – whether in all cases remains to be seen.  It would appear from several press articles by Turkish journalists, based on leaked information, that the Court will go to judgment in these cases on 20 March 2018 and perhaps find violations of press freedoms.

If this is so – and I have no real way of affirming or denying these reports although I must put on record that I deplore that the serenity and integrity of the Court’s procedures can be betrayed in this way – the effect of these judgments may be to re-open the question of whether the CC is able to perform its role generally in other cases. 

And give the lie to the idea that the Court has turned its back on Turkey.