Representatives of the Council of Europe and the Turkish Media and Law Studies Association (MLSA) have met in Strasbourg today for an exchange of views regarding the situation in Turkey and the involvement of the European Court of Human Rights (ECtHR).
The MLSA is a Turkish non-profit, pro-democracy NGO (registered as Medya ve Hukuk Çalışmaları Derneği) founded in late 2017. The MLSA has recently organised events with media and human rights lawyers at which decisions from the ECtHR regarding Turkey were discussed.
The purpose of the meeting was to reach a better mutual understanding of the concerns of Turkish human rights defenders, on one hand, and the rule of law principles of the Council of Europe and the ECtHR on the other. The exchange was detailed, substantive and fruitful.
The Council of Europe is aware of a common perception among NGOs that the ECtHR is not giving adequate attention to human rights issues in Turkey, but believes this is based on a lack of information and misconceptions.
The Council of Europe emphasised the importance of the independence of the ECtHR (including with regard to the timing of its decisions) and the principle of subsidiarity – in particular Article 35 §1 of the European Convention on Human Rights, which stipulates that the ECtHR may only deal with cases after all national legal remedies have been exhausted. The ECtHR cannot intervene on the basis of general concerns and perceptions – however widespread they may be – but takes decisions based on the legal evidence put before it in each specific case it considers.
Council of Europe and the ECtHR are monitoring the situation in Turkey closely. The ECtHR reserves the right to examine the effectiveness of national legal remedies in the light of developments, in particular as regards the authority of judgments by the Turkish Constitutional Court over lower courts.
1. Following the events of 15 July 2016 and the different measures taken under the state of emergency legislation, the ECtHR received over 33,000 applications. The majority of these concerned dismissed civil servants (over 30,000 including 250 judges). 2,000 concerned detention (including 380 judges) and the remainder concerned different issues.
2. This has to be seen in the general context of 130,000 civil servants being dismissed and 50,000 persons held in pre-trial detention. The Turkish Constitutional Court received some 80,000 individual applications but dismissed 75,000 of them. The remaining 5,000 cases pending before the Constitutional Court concern the alleged unlawful detention and/or excessive length of detention of individuals.
Non-exhaustion – effective remedies
3. Under Article 35 § 1 of the European Convention on Human Rights, the ECtHR may only examine an application on its merits if it is satisfied that domestic remedies have been exhausted. This is an important component of the principle of subsidiarity since it allows the national authorities the opportunity to address a Convention breach before the international machinery is engaged. At the same time, it is not only an obligation under Articles 1 and 13 of the Convention to make such domestic remedies available, but it is also critical for the proper operation of the rule of law.
4. In the context of the post-coup measures, the efforts of Council of Europe Secretary General Jagland were directed at stressing the need for the Turkish authorities to ensure that effective judicial review was available for those people affected by the emergency measures. The point was made that otherwise the ECtHR would be examining complaints without the Turkish judiciary having had any input, and this in itself could constitute a violation of the Convention. Moreover, it was important, if rule of law standards were to be maintained, for the judiciary to play its full role.
5. Following the dialogue with Secretary General Jagland and other Council of Europe representatives, the Turkish authorities set up an ad hoc Commission to review decisions dismissing civil servants (Decree-law no 685 of 23 January 2017). The Commission’s decisions can be appealed to the Administrative Courts and then to the Constitutional Court. The decree-law also provided the possibility for dismissed judges to seek redress before the Supreme Administrative Court.
The ECtHR’s inadmissibility decisions
In its decision Köksal ((dec) no. 70478/16, 6.6.2017), the ECtHR held that Decree-law no 685 clearly opened the way for a review, through the ad hoc Commission, of the measures taken under the state of emergency concerning civil servants and provided for subsequent judicial review of decisions taken by that Commission. The ECtHR concluded that this remedy was a priori accessible and that there were no grounds for presuming that it would not be capable of offering redress.
However, this position could be reviewed at a later date in the light of evidence about how the scheme operates in practice. In its decision Çatal ((dec), no. 2873/17, 7.3.2017), the ECtHR found that the remedy (judicial review) now available before the Supreme Administrative Court for dismissed judges had likewise to be exhausted.
7. Previously the ECtHR had found that remedies available before the Constitutional Court also had to be exhausted (Mercan (dec), no. 56511/16, 8 November 2016; Zihni (dec), 59061/16, 29 November 2016).
8. As a result of these findings of non-exhaustion of domestic remedies, the ECtHR declared 30,000 applications concerning the post-coup measures inadmissible between mid-June and 31 December 2017.
9. At the same time, applications lodged by journalists and members of Parliament who remained in detention were not rejected for non-exhaustion of domestic remedies, notwithstanding the fact that their appeals to the Constitutional Court were still pending. The length of time that the Constitutional Court takes to decide these cases has a direct impact on the length of the applicants’ detention and influences the assessment of the effectiveness of the remedy.
Current situation of incoming cases
10. As regards the current situation, it is worth noting that the number of cases arriving at the ECtHR each day has diminished significantly (30-40 applications per week as compared with 1,000-1,500 in the immediate aftermath of the post-coup measures).
Decisions of the Constitutional Court
11. The Constitutional Court examined and rejected two test individual applications on the issue of detention. It also rendered three important judgments on 11 January 2018 concerning the pre-trial detention of well-known journalists. The Constitutional Court ruled that there had been a violation of the right to liberty and security of the three journalists concerned and a further violation of right to freedom of expression of two of them. Following these judgments, the journalists in question requested their release, but the assize courts refused to comply with the judgments of the Constitutional Court and to release the journalists on the grounds that the Constitutional Court’s jurisdiction was subsidiary and it was not competent to rule on the existence of a strong suspicion of the commission of a crime. The journalists’ appeal against the assize courts’ decisions was dismissed but only one of them is still in detention (Mehmet Hasan Altan, on the ground that he had since been convicted). In the meantime, the Constitutional Court adopted two judgments concerning two of its former judges; in one case it found a violation and in the other no violation of the rights of these judges.
12. Since December 2017, the Constitutional Court has also rejected more than 5,000 applications concerning the detention of civil servants and magistrates. It also adopted three test judgments concerning members of Parliament (one violation and two no violations).
13. The ECtHR considered the effectiveness of the proceedings before the Constitutional Court in respect of detention in the cases of two journalists (Sahin Alpay (16538/17, 20 March 2018) and Mehmet Hasan Altan (no. 13237/17, 20 March 2018). The ECtHR confirmed its previous finding in the Mercan case that the Constitutional Court did indeed offer an effective remedy. However, given the lapse of time and the number of cases pending before the Constitutional Court, a number of test cases are in the process of being communicated to the Government with a view to examining all legal questions raised in detention cases.
Moreover, the ECtHR reserved the right to examine the effectiveness of the system of individual applications to the Constitutional Court in relation to applications under Article 5 of the Convention, especially in view of any subsequent developments in the case-law of the first-instance courts, in particular the assize courts, regarding the authority of the Constitutional Court judgments. In that regard, it would be for the Government to prove that this remedy is effective, both in theory and in practice. The decisions of the assize courts raised serious doubts about the effectiveness of the remedy (Altan at § 142).
Article 15 derogation
14. On 21 July 2016 the Turkish Government notified the Secretary General of the Council of Europe of a derogation under Article 15 of the Convention. In the Alpay and Altan judgments, the ECtHR agreed with the Constitutional Court’s findings that the attempted military coup disclosed the existence of a “public emergency threatening the life of the nation” within the meaning of Article 15. However, as to the criterion of proportionality, the ECtHR, again agreeing with the Constitutional Court, considered that pre-trial detention that was not “lawful” and had not been effected “in accordance with a procedure prescribed by law” on account of the lack of reasonable suspicion could not be said to have been “strictly required by the exigencies of the situation”.
15. There are at present more than 1,600 cases pending at the ECtHR concerning the lengthy detention of judges (more than 450) and civil servants (approximately 1,150). The ECtHR has communicated seven so-called “leading” or test cases to the Government.
16. Thirteen applications concerning the lengthy detention of journalists have been communicated to the Government. As noted above, the ECtHR has already delivered two judgments (Altan and Alpay) following judgments of the Turkish Constitutional Court finding violations of the right to liberty and security and of the freedom of expression. Eleven applications are still pending before the ECtHR.
17. There are fifteen applications concerning lengthy detention of members of Parliament pending at the ECtHR, thirteen of which have been communicated to the Government.
18. Two applications by hunger-strikers have been communicated to the Government by the ECtHR.
19. There are 97 applications pending at the ECtHR concerning the revocation of University teachers who signed a declaration criticising the action of the Government. None of these has yet been communicated to the Government.
Situation of ECtHR applicants in detention
20. Of the 1,600 cases involving the detention of civil servants and judges which are pending before the ECtHR, according to the information supplied by the applicants 100 of the detainees concerned have been released on bail.
21. Of the twenty-three detained journalists who brought thirteen applications (one application was lodged by a group of 10 applicants), nineteen have been released. There are other cases concerning detained journalists which pre-date the 2016 coup.
22. Fifteen applications have been lodged by detained members of parliament. Only two of them have been released.
23. Two academics, Nuriye Gulmen and Semih Ozakça, who went on hunger strike after being dismissed from their jobs by a state of emergency decree and detained, were released and ceased their hunger strike.
24. Two categories of cases have been given priority as urgent cases:
Where the applicant’s situation represented a risk to life or health (for example the two hunger strikers).
Where detention was linked to the exercise of another Convention right (for example Article 10 of the Convention for journalists or Article 3 of Protocol No. 1 for the members of Parliament).
25. Where cases have been classified as urgent, they have been communicated rapidly to the Government – from two to six months after their introduction – without waiting for the outcome of their appeal to the Constitutional Court.
Proceedings before the ad hoc Commission
26. According to the information available to the Council of Europe, some 102,000 applications were filed with the ad hoc Commission. The Commission has so far examined 17,000 applications and reintegrated 660 civil servants. It has also just started to examine the applications of associations which were shut down and decided to reopen six of them. These are the first decisions concerning associations.
27. There are still 91,905 applications to examine.
28. Where complaints are rejected detailed reasoning is given, thus enabling the complainants to apply to the administrative courts for judicial review.
29. The post-coup situation in Turkey was, from a Convention perspective, unprecedented, in terms both of the scale of the measures taken in response to the coup and of the volume of applications arriving in Strasbourg. The situation presented special challenges of a legal and, considering the sheer number of cases, a practical nature. Initially the main legal issue was the extent to which effective remedies existed in Turkey which would therefore have to be exhausted before applications could be examined on their merits.
30. As regards the proceedings at the Constitutional Court, the ECtHR had found in an earlier case (Uzun v. Turkey, 10755/13, 30.04.2013) that by establishing the right of individual application, the Turkish Parliament had demonstrated its intention to entrust the Constitutional Court with specific jurisdiction to establish a breach of Convention provisions and to give it the appropriate powers to secure redress for violations, by granting compensation and/or by indicating the means of redress, which could and should enable the Constitutional Court, if necessary, to prohibit the authority concerned from continuing to breach the right in question and to order it to restore, as far as possible, the status quo ante. In short the introduction of the right of individual application to the Constitutional Court was a major step forward in ensuring more effective implementation of the Convention in Turkey.
31. In decisions since the coup, the Constitutional Court has upheld Convention rights. Thus for example it found in Sahin Alpay that if it were accepted that people could be placed in pre-trial detention without strong evidence that they had committed an offence, the guarantees of the right to liberty and security would be meaningless (see § 32 of the ECtHR judgment). It has among other things emphasised that the state of emergency was a temporary legal regime, in which any interference with fundamental rights had to be foreseeable and the aim was to restore the normal regime in order to safeguard fundamental rights (as observed by the ECtHR in Mehmet Hasan Altan, at § 80 in fine).
32. As noted above, the ad hoc Commission is continuing its work and cases rejected by it can be examined by the administrative courts.
33. There is still therefore, and for the time being, a presumption that the majority of cases arising from the post-coup emergency measures will be the subject of some form of review at national level. The time taken to effect that review will continue to be an element in considering whether it is an effective remedy, in particular for people in pre-trial detention. At this stage the ECtHR has recognised that the length of examination by the Constitutional Court was not “speedy”, but was acceptable in the exceptional circumstances of the huge influx of cases following the declaration of the state of emergency (see Altan at § 165).
34. The ECtHR’s dismissal of a considerable volume of applications for non-exhaustion of domestic remedies is the simple application of a critical Convention admissibility criterion, a cornerstone of subsidiarity. However, this does not mean that the underlying problems have been resolved. It is vital that the Turkish Courts are in a position to perform their Convention function as the primary guarantors of the rule of law and fundamental rights to the full.
 Communication is an important stage in the procedure before the ECtHR, when the respondent State is formally notified of the case lodged with the ECtHR (Rule 54 § 2 (b) of the Rules of ECtHR).