Turkey’s Coup and the European Court of Human Rights
16 March 2018 by Tony Fisher
In his role as Chairperson for the Human Rights Committee of the Law Society of England and Wales, Senior Partner Tony Fisher went to Berlin on March 5th to participate in a joint event organised by the Law Society, the German Bar Association, Lawyers for Lawyers, the Observatoire International Des Avocats and ELDH. This focused on the approach which the European Court of Human Rights has been taking to cases emerging from Turkey since the attempted coup in July 2016. The event was also supported by three groups of French lawyers, Defense Sans Frontiere – Avocats Solidaires, the Conference des batonniers, and Le Syndicat des Avocats De France.
The event was opened by the President of the DAV Mr Ulrich Schellenberg, and the speakers included the former Turkish judge at the European Court of Human Rights, Riza Turmen, Michael O’Boyle former Deputy Registrar at the court, and professors Francoise Hampson and Basak Cali. I chaired the event which was attended by around 100 delegates including lawyers from across Europe; Turkish academics who were forced to flee Turkey after the attempted coup; members of international human rights NGO’s; and lawyers who had flown in from Turkey to attend the event. The focus of the event was to answer questions on whether the court can now in any way be said to be providing an effective remedy to the citizens of Turkey and if not what approach should it adopt. Important questions in a world where fundamental rights and freedoms are being challenged in many Council of Europe states more than they have been for decades.
In July 2016 there was an attempted coup in Turkey. That much is well known. There were 241 casualties and 2,196 people were wounded. The Turkish government succeeded in overcoming the coup attempt rapidly. Five days later a state of emergency was declared across Turkey which has been continuously in force ever since. Within days, thousands of military personnel, police officers, journalists, civil servants and politicians were arrested and imprisoned. Thousands of judges and prosecutors were dismissed and jailed. Emergency decrees have closed schools, Universities, law firms, many NGO’s and indeed much of civil society. Over 150,000 public sector employees have now been purged. The legal profession has also suffered persecution. Hundreds of lawyers have been arrested and detained. Even the head of Amnesty International in Turkey lies in prison, re-arrested recently after having been released on one set of charges. By November 2017 555 lawyers had been jailed according to statistics collated by the Council of Bars and Law Societies in Europe. Many more have been arrested since. Little is left of a civil and criminal justice system which once provided effective remedies and some sort of justice for individuals.
The Constitutional Court, Turkey’s highest court, has been ineffective in addressing the gross violations of individual rights and freedoms which have taken place. It decided that it had no jurisdiction to challenge actions taken under emergency decrees. It now sits on tens of thousands of cases waiting to be heard. Of over 60,000 cases awaiting decisions, more than 40,000 were submitted after the Turkish government declared emergency rule. Turkey’s answer was to set up a seven person commission (for the most part appointed by the Turkish government) to review cases of employees dismissed by the government decrees. It also now has a backlog of tens of thousands of cases.
Not surprisingly, desperate people have been turning elsewhere in search of a remedy. Turkish citizens filed more than 90,200 petitions to the European Court of Human Rights in 2017, but over 30,000 of them were dismissed summarily as being “manifestly ill-founded” by the court since alleged domestic remedies had not been exhausted. Although some cases involving politicians and journalists have now been referred to the Turkish government, many commentators are bemoaning the failure of the court to address this problem.
Each of the speakers had differing perspectives on the attitude the court has taken to date in relation to these applications. There is clearly great frustration amongst applicants and their lawyers. However much of the debate at the event surrounded the extent to which the court was proceeding correctly in “testing” the availability and effectiveness of domestic remedies before finding any violations under the Convention. Many felt that time needed to be given to establish whether the remedies were, or were not, going to work. Others pointed to the illegality of many of the emergency decrees under the existing provisions of the Turkish Constitution. There was a consensus that the period during which the Turkish authorities should be allowed to provide evidence that the remedies are functioning should now be coming to an end.
A full report of these deliberations will be published in due course in the hope that it will inform further debate. The call to action from the conference was that European lawyers and lawyers in Turkey in particular should co-operate and collaborate to ensure that the best cases are properly pleaded and supported to make the task the court faces more manageable going forward. A proposal to assemble a database of cases and a list of issues which needed to be addressed from an ECHR perspective was overwhelmingly supported by a show of hands at the end of the conference. On the domestic front, more trial observers are needed to cover the thousands of trials of lawyers, politicians, academics and journalists which are taking place and delegates agreed to co-operate and try to find resources to provide training to volunteers who are prepared to become trial observers.
The Law Society and the Human Rights Committee will continue to engage in taking these calls to action forward, and will continue to intervene in individual cases where the rights of lawyers in Turkey have been violated.