Turkey’s Derogation from the ECHR – What to Expect?

In the aftermath of the failed 15 July coup, Turkey’s government declared a state of emergency and subsequently on 21 July notified the Council of Europe that it “may” derogate from the European Convention on Human Rights (ECHR).  So far there is no information of a possible notification to the United Nations concerning derogations from the International Covenant on Civil and Political Rights (ICCPR).

Turkey’s ECHR formal notification was preceded by widely reported expectations, fuelled also by a Council of Europe press release, that it was going to “suspend” the ECHR (presumably as a whole) and, interestingly, followed by a 25 July communication to the Council of Europe (see below) that appears to downplay the severity of the derogations.

Derogations from some but not all human rights are permissible under ECHR Article 15 and, similarly, under ICCPR Article 4 when a state is faced with a public emergency that threatens the life of the nation and officially proclaims a state of emergency. A failed military coup would prima facie qualify as serious enough a situation that can be addressed through declaring a state of emergency in the process of restoring normalcy.

Basing myself on the assumption that Turkey’s decision to derogate from some of the ECHR rights as such is to be assessed as permissible, I will below address the constraints that a country is facing under human rights law when lawfully derogating. Thorbjørn Jagland, Secretary-General of the Council of Europe, paraphrased those constraints in a statement when acknowledging receipt of Turkey’s notification:

As the European Court of Human Rights has made clear, any derogations must be proportionate to the situation and in no circumstances can a state derogate from Article 2: the right to life, Article 3: prohibition of torture and inhumane or degrading treatment or punishment and Article 7: no punishment without law.

The actual wording of Article 15 is somewhat more complicated, as it requires that any measures derogating from the ECHR are “strictly required by the exigencies of the situation” and “not inconsistent with … other obligations under international law”, and as it also mentions the prohibition against slavery and servitude (Article 4) among absolute, i.e. non-derogable rights. The reference to “the exigencies of the situation” is understood to encapsulate both necessity and proportionality requirements, as has been elaborated under ICCPR Article 4 by the Human Rights Committee in its General Comment No. 29.

The ECHR and ICCPR lists of nonderogable rights are fairly well reflected in Article 15.2 of the Turkish Constitution:

Even under the circumstances indicated in the first paragraph, the individual’s right to life, the integrity of his/her corporeal and spiritual existence shall be inviolable except where death occurs through acts in conformity with law of war; no one shall be compelled to reveal his/her religion, conscience, thought or opinion, nor be accused on account of them; offences and penalties shall not be made retroactive; nor shall anyone be held guilty until so proven by a court ruling. (Translation source.)

Much of the immediate international attention and concern has focused on signals by the Erdogan regime that Turkey might be considering the reintroduction of capital punishment. Without trying to dismiss those concerns, I do want to point out that the state of emergency or the ECHR notification cannot possibly serve as legal justification for the death penalty. There are multiple reasons why the reintroduction of capital punishment appears excluded, at least legally speaking.

Firstly, in 2004 the above-quoted Article 15.2 of the Turkish Constitution was amended so that a reference to capital punishment potentially being lawful during a state of emergency was deleted from the provision. Hence, capital punishment has been abolished by the Constitution and in a manner that makes that abolition non-derogable during a state of emergency.

Secondly, Turkey has internationally committed itself to having abolished capital punishment in peacetime and in wartime, by ratifying without reservations ECHR Protocols 6 and 13 as well as the Second Optional Protocol to the ICCPR. All these instruments are explicitly non-derogable.

Thirdly, the even more drastic measure of withdrawing from these three Protocols also appears to be excluded.  None of the Protocols contains a withdrawal clause. ECHR Protocols 6 and 13 have become an integral part of the ECHR itself and now affect the interpretation of  state obligations under the non-derogable right to life provision in ECHR Article 2. Denouncing Protocols 6 and 13 would most likely trigger a response from the ECtHR that through the wide acceptance of the protocols abolishing capital punishment, Council of Europe member states have actually amended the ECHR to the effect that its non-derogable Articles 2 and 3 on their own prohibit capital punishment.

Reference is made to the obiter dictum statement contained in the case of Öcalan v. Turkey (Application no. 46221/99) where the Grand Chamber (Judgment of 12 May 2005) in paragraph 163 approvingly quotes the earlier Chamber judgment at a time when Turkey had not yet ratified Protocols 6 and 13:

Such a marked development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1, particularly when regard is had to the fact that all Contracting States have now signed Protocol No. 6 and that it has been ratified by forty-one States. It may be questioned whether it is necessary to await ratification of Protocol No. 6 by the three remaining States before concluding that the death penalty exception in Article 2 § 1 has been significantly modified. Against such a consistent background, it can be said that capital punishment in peacetime has come to be regarded as an unacceptable … form of punishment that is no longer permissible under Article 2.

Still under the same point it needs to be mentioned that ICCPR Article 6 on the right to life is interpreted as creating a non-derogable obstacle to the reintroduction of capital punishment for states that have once abolished it. And as the ICCPR has no withdrawal clause, there is universal acceptance of the position by the Human Rights Committee developed in General Comment No. 26 as a reaction to North Korea’s purported denunciation of the ICCPR, that the Covenant cannot be denounced. Hence, even the adventurous path of denouncing the ECHR as a whole and leaving the Council of Europe would not help, as Turkey would still be bound by the ICCPR and its Second Optional Protocol.

Fourthly, as a more pragmatic consideration it needs to be mentioned that ECHR Articles 15 and 7, and equally ICCPR Articles 4 and 15 (that would remain in place even if Tukey left the ECHR system), and – once again – Article 15 of Turkey’s own Constitution prohibit any retroactive application of criminal law, explicitly also during a state of emergency. Whatever Turkey were to do in order to reintroduce capital punishment, it could not justify applying the death penalty for the plotters of the failed coup of 15 July.

For all these reasons I do not believe that the risk of a reintroduction of capital punishment will be the main issue where the international community should  turn its attention over Turkey’s derogations from human rights treaties.

What we can expect to happen in Turkey is a wave of restrictive measures that go beyond what are to be seen as permissible limitations to human rights and can therefore only be justified as derogations during a state of emergency. They are likely to affect many of the rights that in the ECHR (and in the ICCPR) do not belong to the list of non-derogable rights. The most likely provisions that may become subject to derogations are:

• ECHR Article 5 (liberty, also ICCPR Article 9): the government has already announced the extension of detention without charges up to 30 days. It is not unthinkable that it would also seek to create a category of security detention (a.k.a. preventive detention) falling outside the exhaustive list of permissible grounds for detention in ECHR Article 5.1. The right to judicial review of any form of detention (ECHR 5.4, ICCPR 9.4) is to be understood as non-derogable but that does not exclude the possibility of security detention or of adjustments in the modalities of court review.

• ECHR Article 6 (fair trial, also ICCPR Article 14): Turkey may introduce modifications in the functioning of the judicial system, including by restricting access to court, by introducing special courts or even military courts. The presumption of innocence, equality of arms, the requirement that criminal convictions can only be issued by a court, and the various dimensions of the requirement of legality (including the prohibition of retroactive application of criminal law) must however remain protected as non-derogable dimensions of fair trial rights.

• ECHR Articles 8, 10 and 11 (respectively, privacy and family, also ICCPR Articles 17 and 23, expression, also ICCPR article 19, association and assembly, also ICCPR Articles 21 and 22) may become subject to measures that derogate from the requirements imposed on states during normal times. We are already witnessing or may expect search and seizure measures, interception of communications, blocking social media, closing down or control of media outlets, dissolution of various associations or bans on demonstrations or public meetings. For the functioning of civil society and for Turkish democracy, these derogations may be the most troubling ones. It will be important to remain mindful of the fact that derogation from human rights treaties does not entail the suspension of rights but simply an added layer of restrictions, justified as necessary by the particulars of the emergency that threatens the life of the nation, and always constrained by the exigencies of the situation and the requirement of proportionality.

• ECHR Protocol 4, Article 2 (freedom of movement, also ICCPR Article 12) is another likely candidate for measures that derogate from human rights. The measures in question may include curfews, introduction of checkpoints, or assigned residence as an alternative to security detention. Forced displacement of population groups, such as the Kurds, would be a non-derogable red line that a state of emergency does not justify crossing.

It is problematic but not without precedent that the text of Turkey’s notification lacks any detail concerning the actual derogations from the ECHR. It does not even mention which articles will be subject to derogation. Instead, it simply states that the “measures taken may involve derogation from the obligations under” the ECHR. A purist could conclude that Turkey has not even derogated from the ECHR but has only indicated that it may need to do so in the future. Unfortunately the quoted phrase from Turkey’s notification is verbatim copypasted from the notification made by France in the aftermath of the November 2015 terrorist attacks in Paris. Notably, the parallel notification by France under the ICCPR was more appropriate, as it at least indicated which articles would be subject to derogations:

Some of these measures, prescribed by the decrees of 14 November 2015 and 18 November 2015 and by the Act of 20 November 2015, may involve a derogation from the obligations under the International Covenant on Civil and Political Rights, and particularly its articles 9, 12 and 17.

As already mentioned in the beginning of this post, a new development occurred on 25 July when Turkey submitted to Council of Europe a new communication which partly provides cross-party legitimation for the Erdogan regime’s proclamation of a state of emergency, and partly offers a restrictive interpretation of what derogations from the ECHR may entail. Most notably, the statement includes the following assurance:

As stated in the Convention, a derogation is not a suspension of rights. It brings certain limitations to the exercise of certain rights to the extent strictly required by the exigencies of the situation.

In the years to come, it will be an important task for Turkish courts, for the ECtHR and for the Human Rights Committee to analyse and assess whether the various deviations by Turkey from the ECHR and the ICCPR that will be explained by the government as derogations during a state of energency indeed are lawful derogations, or whether they constitute violations of international law.