Confusion about the European Court of Human Rights

29 May 2018, Aftenposten



Over the last year Aftenposten has published some articles about the Council of Europe which sometimes distort significantly what is happening in our Organisation. I would just confine myself to the article on the European Court of Human Rights (ECtHR) and its role in Turkey. The Court is said to work too slowly and its capacity to provide legal protection for those arrested and detained after the attempted coup is put to doubt. In the same article, the Secretary General of the Council of Europe is portrayed as presenting his "usual defence of the Court, that it is overworked".

This has never been said by the Secretary General. Indeed, the Court is overloaded with cases, but that is certainly not the reason why relatively few cases have been dealt with by it after the attempted coup in Turkey. The actual reason why there are few rulings so far is that the ECtHR is a court of law and must scrupulously observe its own procedures; if it disregards them, it will appear as acting under political pressure and lose its legitimacy and credibility. The Court has to observe the European Convention on Human Rights which states in Article 35 that the Court shall not deal with cases which have not been submitted to and dealt with first by the domestic courts.

The Council of Europe's involvement in Turkey has a long history. Over the years, the Court issued 9800 judgements concerning Turkey. Many of these related to areas such as torture, disappearances, freedom of speech, ban on political parties, destruction of villages, expropriations, fair trial, and death penalty. The Court’s judgments and the action of other institutions in the Council of Europe reshaped the legal landscape of the country. Turkey changed its Constitution to allow everyone to complain about human rights violations to its Constitutional Court. And the Council of Europe assisted Turkey in this endeavour to ensure that the Constitutional Court shall adjudicate cases on the basis of the European Convention of Human Rights and the Strasbourg case law.

This worked as intended. The Constitutional Court passed a number of landmark judgements that reinforced human rights protection in the country.

All of this was before the coup attempt.

What many ask now is whether this Constitutional Court is still functioning as intended. Over a hundred journalists are deprived of their liberty. 50,000 others have been arrested and over 100,000 have lost their jobs in the public sector.

Some detained journalists claimed before the Constitutional Court that they were detained without any valid ground, in breach of the European Convention of Human Rights. In two most prominent cases (Mehmet Altan and Sahin Alpay), the Constitutional Court applied the Strasbourg case law, found that there was no sufficient evidence to detain the journalists and that their right to liberty was violated.

The first question that the ECtHR needs to answer when dealing with cases against Turkey is whether the Constitutional Court continues to apply effectively the ECHR. The Strasbourg Court has not yet reached a final conclusion on this. But it has stated that, if the Constitutional Court does not judge according to the ECHR or if it turns out that lower courts do not respect its decisions, it may consider that those who apply to Strasbourg do no longer need to appeal beforehand to the Constitutional Court.

Judgements from the Constitutional Court of Turkey are now expected in a wide range of cases, and this will provide the final answer. If this answer is negative, the ECtHR is well prepared to deal with these cases. Today, the ECtHR is a strong and well-functioning court. Back in 2009, it was indeed in a deep crisis with 130,000 cases pending before it. Reforms were needed to ensure the Court’s capacity to deal with increasing numbers of cases. And indeed, deep reforms were conducted in the ECtHR after Secretary General Jagland succeeded in having Russia ratify an Additional Protocol to the Convention enabling the Court to simplify its procedures. The Council of Europe's other activities were also reformed and streamlined in order to better support the work of the Court and help member states to bring their legislation in line with the European Convention and the Court’s case law.

The Court is aware of its responsibilities, including as regards the situation in Turkey. But it must work as a court of law. It has no authority to set aside the judiciary of a member state without valid reasons. It has as its mandate to protect the rights of individuals on the basis of the law it applies, namely the Human Rights Convention, and only as far as this law goes. Even when a High Contracting Party to the Human Rights Convention, namely any of the 47 governments of the Council of Europe, brings an inter-state case against another member state (a possibility which is foreseen in the Convention), the Court will decide the case in accordance with the law and procedures as set out in the Convention. It is not for the Court to make political assessments as to the situation in a member state.

The President of the Human Rights Court, Raimondi, has often referred publicly to how the Court is working in the Turkish cases. Regrettably, no reference is made in the article of Aftenposten to his statements. Hence, this article. The readers of Aftenposten deserve to gain insight into how this important European institution works.