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. Read the rest of this entry…