The Spectre of Trexit: Proposal to Reintroduce the Death Penalty in Turkey

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On 1 October 2018, just ten days before the European and World Day against the Death Penalty, the only elected member of parliament of the BBP – a Turkish ultra nationalist party – submitted a draft legislation proposal to Parliament asking for the reintroduction of the death penalty in Turkey. The proposal reintroduces the death penalty for the murder of children and women through sexual means and for killings carried out as part of individual or organised acts of terrorism.

In its justification for the proposal, Burhan Ekinci, the MP in question, highlights the need to restore justice for victims of these hideous crimes, and the need to enhance the trust of the Turkish public in the fairness of the Turkish criminal justice system.  In his proposal, Ekinci argues there is no death penalty in Turkey because of ‘international agreements’ (in quotation marks) and what he labels ‘domestic dynamics’. Ekinci also expresses his disgust for the dishonesty of so-called humanism which, he claims, puts the rights of perpetrators above those of the victims of the most serious crimes. 

This proposal, of course, may not find support in the Turkish Parliament and fade away. Evidence, however, shows that the proposal should not be taken lightly. If it does succeed, it can be Turkey’s Trexit, ending Turkey’s long standing relationship with European institutions.

Why Now, Now What?

There has been a global abolitionist trend concerning the death penalty over the past forty years. Between 1977 and 2017 the global community went from 16 countries that had totally abolished the death penalty to 106. Indeed,146 countries are abolitionist in law or in practice. A key feature of this abolitionist trend is that it takes place through executive practice and parliamentary amendments.

Turkey has been part of this abolitionist trend since the 1980s, prior to which the political use of the death penalty opened many scars in Turkish political consciousness. A moratorium on the death penalty started in 1984, with the practice finally outlawed, for peace time offences, on 9 August 2002. The abolishment then had cross-party support – including from the nationalist MHP party (then part of the coalition that governed Turkey between 1998 and 2002). The AKP came to power for the first time in November 2002. A year after, Recep Tayyip Erdoğan, then prime minister, signed Protocol 6 ,thus abolishing the death penalty, and the AKP-majority parliament ratified it. On 14 July 2004, it was the AKP-majority parliament that abolished the death penalty also in times of armed conflict. Two years later Turkey ratified Protocol 13 to the European Convention on Human Rights abolishing the death penalty in all circumstances.

Chatter around bringing back the death penalty has increased in volume in Turkey after the failed coup attempt of 2016. President Erdogan on numerous occasions indicated that, if the people wanted the death penalty reinstated and if Parliament voted on such an amendment, he would approve it. The two coalition partners of Erdogan for the 2018 parliamentary election, the MHP (the Turkish National Movement Party) and the BBP, have also been public about their wish to bring back the death penalty. This in particular as a retributive measure against the terrorist group the PKK.

The AKP-MHP-BBP coalition has 340 voting members in Parliament. Reintroduction of the death penalty in Turkey requires a constitutional amendment. Such an amendment can be done in two ways – via a referendum, or directly by Parliament. To take a constitutional amendment to referendum requires 360 votes in favour. To introduce a change directly through Parliament requires 400 votes. To take Ekinci’s proposals to a referendum, therefore, requires the support of 20 more MPs from outside the ruling coalition. This is not an impossible number to secure.

This proposed legislation can fail. But if it does not, research shows that the question of the death penalty is divisive as a matter of inter-personal morality in modern societies. Polls show majority or near majority support for the death penalty amongst individuals in many countries, including in those that have abolished the death penalty. Public, in general, is emotionally moved by arguments in support of the death penalty against those who  sexually abuse and then murder children and women, and those who blow up innocent civilians. Such referenda can succeed not only in Turkey, but also in other European countries, if they were to take place.  It is for this reason that in Europe, European institutions provide an extra layer of protection to lock states into the abolition of the death penalty. In both the European Union and the Council of Europe, death penalty is conceived as a red line that no state can cross, thereby increasing the costs of national moves to reintroduce it.  What happens if a state crosses that red line?

Death Penalty as Trexit

In the long winded Brexit affair, it was migration that many in the UK wanted to take back control over. They didn’t necessarily want the rest that came with it. In the Turkish case, some may indeed want the death penalty for the most heinous crimes, but this is not possible alone. Reintroducing it in Turkey may mean a double TREXIT, from the EU accession process and from the Council of Europe.

The absolute ban on the death penalty under all circumstances is inscribed in the Charter of Fundamental Rights of the European Union and reintroduction of the death penalty would put an end to Turkey’s status as an accession country. 

The Council of Europe, too, is a death penalty-free zone across its 47 member states.  In 1989, the abolition of the death penalty was made a condition of accession to the council. Since then, all new members have either committed to introducing an immediate moratorium on executions or have ratified Protocol 6 – banning the death penalty for peace time offences when joining the organisation. Protocol 6 today has 46 ratifications; the one exception – Russia – has a moratorium on the death penalty.  Belarus, the only country on the European continent that is not a member of the Council of Europe, has not been admitted to the Council because of, amongst other reasons, its active use of the death penalty.

In 2010, the European Court of Human Rights, in Al Sadoon and Mufdhi v. United Kingdom, clearly stated that right to life under Article 2 of the ECHR has been amended by the almost universal ratification of Protocols 6 and 13 so as to prohibit the death penalty in all circumstances.

Given Turkey’s ratification of Protocols 6 and 13, a reintroduction would constitute a material breach of its obligations. Turkey would also be in direct breach of Article 2 of the European Convention on Human Rights.

If the proposal were to succeed, members of the Council of Europe would be faced with an important decision. They would have to decide if a country reintroducing the death penalty would need to be suspended or expelled as per the Statute of the Council of Europe.  Expulsion would end the oversight of the European Court of Human Rights over Turkey. Given that Russia also has the death penalty as a matter of law, Turkey may also be asked to impose a moratorium on its reintroduction of the death penalty. This, however, would entail high domestic costs, assuming that the reintroduction of the death penalty was not put forward with a view to a moratorium.

Collision Course

The bill introduced in Turkish Parliament on 1 October 2018 has set a collision course. If it succeeds, it will put into motion larger developments and recalibrate Turkey’s legal relations with European institutions and abolitionist states. Turkey would not only turn its face to its own thirty-four-year moratorium on the death penalty, but also to its membership and standing in the institutions of Europe. In the age of exit that we live in, this would be the end of an era in Europe.

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Philippe Frumer says

October 10, 2018

Thanks, Başak, for this interesting – though worrying – post. An additional point : talking about a « Trexit », one might also wonder whether Turkey would be entitled to denounce in the future additional protocols 6 and 13 to the ECHR, without denouncing the ECHR itself.
Technically, this is a rather controversial issue. On the one hand, all additional protocols to the ECHR contain a denunciation provision. On the other, it is unclear whether it would be possible to denounce an additional protocol without denouncing the ECHR at the same time. Arguments can be found in both directions in the doctrinal sources and the European Court didn’t say any word about that issue.
It seems to me that the sole denunciation of the protocols wouldn’t exonerate Turkey from its international obligations regarding the death penalty, particularly in regard to Article 2 ECHR, which, as you rightly point out, must nowadays be interpeted as prohibiting the death penalty in all circumstances, but also in regard to Art. 3 (inhuman or degrading treatment or punishment).

Michael O'Boyle says

October 10, 2018

Thank you Başak for drawing our attention to this potential disturbing development.

The ECHR, as you know, has been navigating some very hostile waters for some time now.

There have always been rumours of adverse developments at some point or other. The UK was considering denouncing the Convention several years ago although this has been shelved pending Brexit. But the threat will be doubtless resurrected after March 2019. It is now rumoured that Russia will reonsider its relationship with the Council of Europe if its dispute with PACE is not resolved amicably. But
even if that happens there are some that will press for Russia's exclusion anyhow given the current serious disputes over the Crimea and the poisoning of the Skripals. There have also been occasional and sometimes loud rumblings about the impact of the ECHR in Denmark, Switzerland, Poland and Hungary creating further risks of dismemberment of the Convention system.

I take the view that while it is a dangerous time for the Convention the very issues that lead us to worry about the inherent fragility of the ECHR system are also the reasons that lead to the setting up of the Convention in the first place. It will fall to the Council of Europe and its institutions (PACE, the Committee of Ministers and the Court) to defend its belief in fundamental values and respond accordingly if and when any of these threats materialise. We should not forget, however, that
all of the states mentioned above have good reasons both political, legal and cultural to continue to belong to the Council of Europe. Indeed in the case of the UK one would imagine that in a post Brexit world its attachment to the work of the Council of Europe would become stronger and not weaker.

Philippe Frumer is right to point out that denunciation of Protocols 6 and 13 would not confer free rein on Turkey to impose the death penalty in all circumstances - if the legislation was to be adopted.

Issues would continue to arise in the light of Articles 2 and 3 concerning proportionality, for example, by imposing the death penalty for offences not involving killing or executing persons after trials marked by unfair
procedures (Soering v UK and Öcalan v Turkey). However there is a niggling issue that calls for attention. If Article 2 has been effectively modified to remove the death penalty - as the Court suggests in Al-Sadoon and Öcalan - then why permit denunciation of Protocols 6 and 13 if this would not have the desired effect of permitting recourse to the death penalty?

I express the hope that this issue will not need to be addressed by the Court in a future Turkish case.

Sotirios Kyrkos says

October 10, 2018

Thank you Başak for this exquisitely documented and informative post.

In my view, even if Turkey finally proceeds with the denunciation of Protocols 6 and 13 of the ECHR, she is by no means absolved from her international obligation not to reinstate the death penalty in domestic legislation, since she remains bound by the relative obligations undertaken through the ratification of the 2nd Optional Protocol to the U.N. International Covenant of Civil and Political Rights (ICCPR)(ratified on the 2nd of March 2006), which,unlike ECHR Protocols, does not contain any kind of denunciation clauses.

Article 6 of the Second Optional Protocol states that “the present Protocol shall not be subject to any derogation,” absolutely expressing that there is no mechanism provided for the State Party to withdraw from the Covenant,thus guaranteeing against reinstatement of the death penalty.

The Vienna Convention on the Law of Treaties (VCLT), which lays down the general rule for the creation,operation and termination of or withdrawal from a treaty,in art. 56 specifically expounds that a treaty without exit provisions is not subject to termination, denunciation or withdrawal unless: “(a) it is established that the parties
intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty.”

The case of the Democratic Peoples’ Republic of Korea (North Korea)in 1997 is a classic example of the impossibility of withdrawal or termination from ICCPR. This case prompted the Human Rights Committee to issue General Comment No. 26 (UN Human Rights Committee (HRC), CCPR General Comment No. 26: Continuity of Obligations, 8 December 1997, CCPR/C/21/Rev.1/Add.8/Rev.1), on the continuity of obligations of States on the ICCPR. The Committee stated in paragraph 1 that "The International Covenant on Civil and Political Rights does not contain any provision regarding its termination and does not provide for denunciation or withdrawal.Consequently, the possibility of termination, denunciation or withdrawal must be considered in the light of applicable rules of customary international law which are reflected in the Vienna Convention on the Law of Treaties. On this basis, the Covenant is not subject to denunciation or withdrawal unless it is established that the parties intended to admit the possibility of denunciation or withdrawal or a right to do so is implied from the nature of the treaty".

The Second Optional Protocol does not carry any implication of a right of withdrawal.To the contrary, every aspect of the Protocol, its object and purpose, and the travaux préparatoires elucidate that no withdrawal from the Protocol, once ratified, is permissible.Therefore,it would be expected that all other States parties to the Second Optional Protocol would oppose and condemn such a course of action in the most vigorous terms.

To sum up,if Turkey, apart from Protocols 6 and 13 of ECHR, decides to withdraw from the ICCPR Second Optional Protocol as well, the relevant provisions of the VCLT will take effect and may face a similar situation as that of North Korea, in which States did not consent to her withdrawal.In the latter case, the U.N. Secretary-General’s view was that unilateral exit from the ICCPR was precluded by Article 54 of the VCLT, which he interpreted as permitting North Korea to withdraw only with the consent of all the other treaty parties. The UN Treaty Section referred to this interpretation in a notification sent to these States in response to North Korea’s action,and ‘[a]t least one State, Denmark, sent a Notification to the Secretary-General agreeing with his understanding of Article 54 and stating that it did not consent to [North Korea’s] withdrawal (see also Laurence R. Helfer: "Terminating Treaties" , in: The Oxford Guide to Treaties 634-649 (Duncan Hollis ed., Oxford University Press, 2012, page 640).