Turkey violations shaping ECHR case-law

The European Court of Human Rights (ECHR) ruled for Turkey 182 violations last year, in a total of 118 judgments.

Some of these violation judgments are firsts in terms of their legal situations, and thus constitute a case-law for future judgments. Others, on the other hand, are important because they have advanced existing practices by adding new dimensions.

In its Annual Report 2013, issued last week while the “main” judgments and decisions of last year were summed up, there were five decisions concerning Turkey:

THE RIGHT TO LIFE/WHEN THE GERDARMERIE OPENS FIRE ON DEMONSTRATORS: This case deals with the situation of Abdullah Aydan, who died while passing by a PKK demonstration as a result of gendarmerie fire in Siirt’s Eruh district in 2005. In this application, the ECHR ruled three separate violations of the right to life (Article 2). One of these violations was because the state failed to conduct an effective criminal investigation after the event. Additionally, even though seven years have passed since the relatives of the victim filed a suit for damages, the case had not been finalized. The ECHR therefore found a breach of Article 6, the “right to fair trial.”

The ECHR also found that the Supreme Court of Appeals’ (Yargıtay) decision not to impose a criminal penalty was incompatible with Article 2 of the Convention, as the gendarmerie had exceeded the limits of self-defense while in an excusable state of emotion, fear or panic.

THE RIGHT TO LIFE / WHEN A PREGNANT WOMAN IS NOT TREATED AND DIES: This case relates to the death of eight-months pregnant woman Menekşe Şentürk, who was denied access to appropriate treatment in İzmir in 2002. She was taken to four hospitals and, while being taken to the fifth, died in the ambulance. She was not operated on in the fourth hospital because her husband was not able to pay for the operation. In this case, the ECHR ruled that there were three different violations of Article 2.
 
The new aspect here is that the violation was because domestic law did not appear capable of preventing the failure to give the woman the necessary medical treatment required by her condition.

INHUMANE TREATMENT / WHEN TEAR GAS CAPSULES ARE FIRED ON CITIZENS: This case is one of the most important case-laws of the ECHR in 2013. It is about 13-year-old Abdullah Yaşa, who was injured when a police officer fired a tear gas capsule targeting his face in Diyarbakır in 2006. For the first time, the court decided that police firing gas capsules directly targeting demonstrators was in violation of Article 3, on the prohibition of torture and inhumane and degrading treatment and punishment.

FREEDOM OF EXPRESSION / WHEN KURDISH ELECTION PROPAGANDA IS PENALIZED: This case is about five Turkish citizens who were sentenced to jail or fines for Kurdish language propaganda in the 2002, 2004 and 2007 elections. The ECHR ruled that the (Turkish) Election Law’s article on “no language other than Turkish” could be used in election propaganda was against Article 10 of the convention on freedom of expression. This is the first time that the ECHR has considered the public use of a language other than the official language within the context of freedom of expression.

VIOLATION OF THE PROHIBITION OF DISCRIMINATION, INHUMANE TREATMENT / WHEN A CANCER PATIENT IS NOT RELEASED: This case is about Gülay Çetin, who was arrested in 2006 because of a murder, and who has encountered serious negligence in her cancer treatment. One of the main viewpoints of the court here is that because of years-long procedures, Çetin was not eligible for a presidential pardon. The ECHR ruled that this was a violation of Article 3 on inhuman treatment, as well as a violation of the prohibition of discrimination (Article 14), because there was a difference in the treatment of convicted prisoners and defendants suffering from incurable diseases. This decision is also a case-law.

As a last note, these violation judgments of the ECHR now cover those violations that mostly happened after 2002, when the Justice and Development Party (AKP) came to power.

Sedat Ergin is a columnist for daily Hürriyet in which this piece was published on Feb 7. It was translated into English by the Daily News staff.