Speech to the candidate judges and prosecutors of the Justice Academy
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It is a pleasure to be here today.
As you may know I have spent the past day discussing Turkey’s current situation and future with President Erdoğan, the Speaker of the Turkish Parliament Kahraman, Foreign Minister Çavuşoğlu, Minister of Justice Gül, Minister for the European Union Affairs Çelik as well as with the President of the Constitutional Court.
These are important matters for all of us, including the distinguished judges in this audience this morning.
But of course most of you in this room are in the foothills of your legal career.
Over the coming years you will gain experience, progress in your profession and become the judges and prosecutors who will help shape Turkey’s future:
Turkey’s European future.
Because, for all that Turkey’s relationship with the European Union remains an unresolved issue, its relationship with the Council of Europe should be clear.
The thirteenth state to join, of 68 years standing, a founding member of our European family.
That family came together on the basis of shared values born of common experience.
In the aftermath of the Second World War there was a near consensus in Europe and beyond that absolute sovereignty and unbridled nationalism constituted a threat to peace.
This was the lesson of the conflict in general and of the Holocaust atrocities carried out by the Nazis and their supporters, in particular.
A new system of checks and balances was required to defuse conflict, rebuild trust and ensure that the horrors of war were never repeated on our continent.
Constraints were required both within and between nation states.
The Universal Declaration of Human Rights, adopted in Paris in 1948, and without a single member voting against it, was a crucial moment.
For the first time, it defined human rights standards for individuals.
And it enshrined those rights in international law.
The following year the Council of Europe was founded and in 1950 it adopted the European Convention on Human Rights.
This made the protection of human rights a binding obligation for Council of Europe member states.
The right to life, liberty and security, a fair trial, privacy, freedom of expression, conscience and religion – and freedom from torture, servitude and discrimination.
These are just some of the rights guaranteed by the Convention, which also put in place the European Court of Human Rights to enforce the system.
The Court serves as the ultimate arbiter over whether a state has allowed the violation of an individual’s rights.
And every individual in our member states has a right to petition it.
But that right can be exercised only after the domestic remedies have been exhausted.
When the European Court does make a judgment, that ruling is binding.
And the Committee of Ministers within our Organisation has collective responsibility for ensuring that it is implemented.
Today, over 830 million Europeans are protected by the Convention and have a right of appeal to the Court.
This shared legal space has been crucial to Europe’s development ever since.
More than that, it has enabled us together to pursue and make real our common values too:
Human rights, democracy and the rule of law.
These protect the individual against the arbitrary use of power by their own state – or any other.
And they are needed now as much as it was needed then.
For while the storm of war on which we were founded is long gone, clouds are nonetheless gathering over Europe today.
In recent years our member states have been hit by strong and unexpected headwinds.
A financial crisis, the threat and reality of terrorism, mass migration caused by conflict and war outside Europe’s borders and outside our control.
In an era of dizzying economic, social and technological change, we are asking people to adapt in ways that they could not anticipate, and a pace we could never have imagined.
So perhaps it should not surprise us that some people, and some countries, are struggling in their response.
Among our member states we have seen pockets of extreme nationalism re-emerge.
We have seen prejudice and xenophobia on the rise, and Islamophobia too – just one example of the wide range of faiths and minorities targeted.
As part of this nationalist trend, many seek to question the authority of the European Court of Human Rights and resist following some of its judgments.
Much to the detriment of their own people.
So what of Turkey?
How has this country responded to the challenges of twenty first century Europe?
The overall picture is one of important transformation.
Since the year 2000, Turkey has undertaken a series of reforms advancing the interests of the Turkish people, in line with the Council of Europe’s values.
Measures have been taken to bolster Turkish democracy and enhance human rights.
We have seen the abolition of the death penalty and a zero tolerance approach to torture and ill treatment.
Security courts have been abolished and military staff have been removed from civil institutions too.
We have also witnessed positive measures to strengthen the rule of law.
Domestic proceedings have been improved where the European Court of Human Rights has found a violation of the Convention.
The precedence of international human rights law over domestic law has been confirmed, as stated clearly in Article 90 of the Constitution.
And, above all, the individual right to petition the Constitutional Court, put in place in 2010, allows people in Turkey to seek protection of their human rights at the national level, on the basis of the European Convention of Human Rights.
This has been considered as an effective remedy by our Court.
These were meaningful measures.
Positive steps indicating a firmly European perspective.
The fact that Turkey opened its borders to around three million Syrians fleeing terrible violence in their country is a further testament to the compassion, concern and human rights perspective to be found here.
So why is it today that people here, in Europe, and around the world are worrying about the current situation in Turkey?
Speaking on behalf of myself, it is not that I fail to understand the crime committed by those who were behind the 15th July coup attempt.
Nor is it because I do not understand the threat of terrorism that Turkey is facing.
On the contrary, I understand these things well.
In July 2016, the Council of Europe was swift to condemn the attempted coup and I made clear that Turkey could count on our solidarity and support.
It was right – and remains right – that the Turkish authorities should investigate the crimes that were committed.
And they should prosecute those who are responsible.This is clear.
In emergency situations, emergency measures might be required.
This must be done in line with the European Convention and the case law of the Strasbourg Court.
And Article 15 itself foresees this kind of situation.
However, it is important to underline that this right to derogate can only be invoked in time of war or other public emergency threatening the life of the nation and that measures taken must be strictly proportionate to the situation and limited in time.
And, above all, certain Convention rights can never be derogated – namely articles 2, 3, 4 and 7 – meaning:
No death penalty
No forced labour or slavery
And no punishment without law
In practice, many of us are concerned today by the length and scope of the ongoing state of emergency.
We are concerned that so many journalists, members of parliament, mayors and human rights defenders are deprived of their liberty.
These people are central to a functioning and effective democracy.
The result of casting the net too widely is to spread a chilling effect across society as a whole.
Because freedom of expression is one of the essential foundations of a democratic society.
In a healthy democracy, people have a right to speak their mind without fear of prosecution.
And a right to be aware of matters of general interest.
As stated by the Strasbourg Court, freedom of expression is essential for journalists to disseminate facts, stimulate debate and inform the public, even where it could offend, shock or disturb.
It is crucial for politicians in order to represent and defend the interests of their electorate.
And it is essential for members of the public to go about their everyday lives, expressing themselves freely, in line with their own views and conscience.
It is in all of our interests to preserve it.
This is also the essence of a large number of judgments by our Court concerning Turkey over the past ten years.
In this respect, and others, the actions undertaken by the Turkish authorities must be compatible with their legal obligations under the terms of the European Convention on Human Rights.
The Convention contains clear standards on fundamental rights.
These include: the existence of sufficient grounds for detention, the presumption of innocence, access to legal representation, access to a court, equality of arms, and the right to a fair trial within a reasonable timeframe.
It is of utmost importance that the cases of all the people affected by the state of emergency measures in Turkey are dealt with in compliance with these standards.
Otherwise the Strasbourg Court will receive thousands more applications concerning the most fundamental human rights.
Overloading the Court will only raise the question of Turkey’s capacity or willingness to uphold the Convention.
This simply will not work. Member states must implement the Convention at the domestic level.
Not wait for an international court to compel them to do it.
Over the course of the past year and a half, the Council of Europe has engaged with the Turkish authorities on a continuing basis.
We have sought to help them ensure that actions taken under the emergency law meet with the required standards of the Convention.
Turkey has acted on a number of our recommendations.
Notably, a National Commission has been established to look at the cases of individuals affected by the decree laws.
This is important.
Until the Commission was established, individuals dismissed from their jobs, and organisations that have been closed down, had no route to contest the decision.
I am aware of the criticisms of the Commission.
I have heard it said that its impact is to delay justice.
But in fact this mechanism creates a path to judicial review and judicial remedy, in line with the principle of subsidiarity.
Without putting a procedure in place, what choice would the European Court have had but to request one?
So there was no alternative.
In its first decision over a case related to the Commission – the Köksal decision, concerning the dismissal of a primary school teacher – the Court made clear that it could return to the question of the effectiveness of this legal remedy.
It will have the last word.
All the more reason then for the Commission to show its independence, to speed up its work and to be fully transparent.
Turkey’s National Commission must work swiftly and impartially or risk being rejected altogether by the European Court.
Strasbourg would then be flooded with even more cases.
Ultimately, this is about building public confidence in Turkey’s legal system.
And it is for Turkey’s judicial authorities to play their part as custodians of the Convention.
Ladies and gentlemen, it is now one and a half years since the attempted coup and, in line with Article 15 of the Convention, it is important to look forward to a time when the emergency law is lifted and normality is restored.
That time surely cannot be far off.
I am aware that Turkey has experienced a national trauma.
But the best answer that Turkey can give is to hold firm to human rights, democracy and the rule of law and demonstrate its respect for the Convention.
Recently, the Turkish Constitutional Court did just that with regard to freedom of expression and pre-trial detention, making reference to case law from our Court.
These decisions are binding. This is guaranteed by the Turkish Constitution.
Other courts must abide by them. They must give appropriate follow-up to the findings of the Constitutional Court and provide redress where constitutional rights are found to be violated.
They must be able to work without interference to restore the constitutional order;
Because if the decisions of the Constitutional Court are not implemented, the rule of law will be undermined.
And where the rule of law falters, human rights cannot be protected as we all agree they must.
In this event, the effectiveness of the individual right to petition the Constitutional Court would also be questioned.
And this would be the end of the system we have built together.
Of course, we are not there yet.
And we will continue to work together to prevent this from happening.
Ladies and gentlemen, all forty seven Council of Europe member states are subject to the same Convention, underpinned by the same Court.
It is an extraordinary and unparalleled achievement for human rights, democracy and the rule of law.
From this, every single person in every single member state benefits each and every day in a myriad of ways, seen and unseen.
Despite all the pressures that Europe has faced over the past seven decades, problems have been overcome, membership has grown, and human rights have advanced.
So as Europe faces new challenges today, we need unity and concerted action to preserve our system in the interests of the people of our continent.
We cannot do this without Turkey.
The strongest response to the winds buffeting Europe today is to stand tall, stand strong, and stand in defiance of pressure.
Together, as Europeans, we must maintain our common values, standards and human rights system.
We must, and we will.
Many of you in this room today will have the opportunity to write a part of that story.
It is a privilege that you should treasure, and a responsibility that you carry.
There will be no enduring peace in Europe – and no unity – without the full respect of our common values based on the European Convention on Human Rights.
This was true in 1950, it is true in 2018 and so it will remain.
22 December 2017
Letter to the President of Romania, Klaus Iohannis