Turkey and the ECHR’s coup attempt challenge

Thousands of public servants dismissed in state of emergency decrees have applied to the European Court of Human Rights (ECHR) since Turkey’s July 2016 coup attempt.

The ECHR turned down all these applications with its “Gökhan Köksal vs. Turkey” ruling dated June 12, 2017, which recognized the State of Emergency Investigation Commission set up by the Turkish government as a domestic remedy.

According to the Justice Ministry around 7,600 applications to the ECHR were made from Turkey shortly after the coup attempt. This number had risen to 24,600 by May 31, 2017. Following the ECHR’s “Gökhan Köksal vs. Turkey” ruling, the number of applications had fallen back to 8,300 as of Oct. 31, 2017.

With that ruling, the ECHR threw the ball to Turkey’s State of Emergency Investigation Commission. Decisions from that commission can be appealed in domestic courts, and individual application to the Constitutional Court can also be added as a next step if the appeal is unsuccessful. When it made its ruling, the ECHR said it would monitor whether domestic remedies in Turkey are effective in practice.

The ECHR ruling was limited to dismissals through state of emergency decrees, and questions remain about what kind of approach the court will endorse regarding post-coup attempt rights violations other than dismissals from the public sector.

It will not be surprising if we see several complaints on issues like the right to a fair trial, long trials, and problems regarding detentions coming to the ECHR’s agenda in the near future. There are many suspects in Turkey who have been under detention since the coup attempt for almost a year-and-a-half whose indictments have still not been prepared. There are also widespread complaints about rights violations while in detention.

Right after the coup attempt, Turkey applied to the Council of Europe and informed that it will be suspending its obligations to the European Convention on Human Rights within the framework of Article 15 of the Convention, which is a derogation clause.

But the derogation does not cover the Convention’s relevant articles on the right to life, on torture and bad treatment, as well as Article 7 that says “No one shall be held guilty of any criminal offence on account of any act or omission that did not constitute a criminal offence under national or international law at the time when it was committed.” The latter point is key for Turkey in terms of the debate on the issue of bringing back the death penalty.

It must be underlined that while the Convention recognizes flexibility for countries under emergency situations, this flexibility can only be practically exercised “to the extent strictly required by the exigencies of the situation.”

In other words, while the ECHR recognizes this derogation it will also be considering whether Turkey is implementing its duties takes place on a balanced way.

The Council of Europe has been in close consultation with Turkey up to now regarding the implementation of Article 15.

However, the ECHR’s decision to take onto its agenda the applications of various detained journalists (without waiting for the exhaustion of domestic remedies in the Constitutional Court), as well as its demand for Turkey’s defense, shows that the Convention’s Article 15 does not guarantee “open credit” for a country, at least when it comes to freedom of expression.

The application to the ECHR was made by a total of 20 journalists and writers including Şahin Alpay, Nazlı Ilıcak, Ahmet Altan and various colleagues from daily Cumhuriyet. The applicants decided to apply to the ECHR after also making individual applications to the Constitutional Court.

The Strasbourg court gave priority to these cases on freedom of expression, taking them onto its agenda without waiting for the exhaustion of domestic remedies. The decision on these files, which the ECHR will probably make in 2018, carries particular importance as it will be the first such ruling since the coup attempt.