Respecting the law might be painful

The European Court of Human Rights (ECHR) has ordered Turkey to release Peoples’ Democratic Party (HDP) leader Selahattin Demirtaş from prison. The European court has said the detention of Demirtaş had the “ulterior purpose of stifling pluralism and limiting the freedom of political debate.” 

Demirtaş, who was a presidential candidate in the June 24 elections but compelled to run an unprecedented campaign from the jail, was first detained in November 2016 and has been facing charges—including over membership in the illegal PKK. Prosecutors have been demanding up to 142 years in prison if found guilty.

Turkey swiftly declared the verdict was “non-binding.” Can that be correct? Or was it a declaration to appease the galleries but Turkey would feel compelled to implement the verdict? There is no need of indulging into a controversy while there are clear stipulations in the Turkish legal framework.

One of the very important articles of the Turkish Constitution is the one regarding how to ratify and implement international agreements and international law. It is a rather long article. The relevant part of it with our subject is its last paragraph.

“International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. (Sentence added on May 7, 2004; Act No. 5170) In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”

Contrary to general characteristics of Turkish law texts, its language is rather clear and easy to comprehend. In summary, this last paragraph and the preceding elaborate text of the article, stresses that if an element of international law—including the decisions of international courts established by international agreements Turkey accepted and duly endorsed by parliament—Turkey respects them.

Furthermore, no one can challenge their compatibility with the Turkish Constitution or laws. What is more interesting, the article clearly underlines that if there was a contradiction or conflict between local law and the international law duly accepted and endorsed by Turkey, provisions of the international law shall prevail.

Turkey was one of the signatories of the 1950 European Human Rights Convention. For quite a long period, it did not accept the right of individual application to the European Court of Human Rights (ECHR). In 1987, it agreed to recognize the right of individual application by Turkish citizens and in 1990 it declared its acceptance to respect the jurisdiction and vowed to respect and implement the verdicts of the ECHR.

These were all revolutionary developments that on the one hand helped Turkey to proceed on its course of integration with Europe, compelled it to introduce revolutionary judicial reforms while at the same time created some nasty developments regarding not only a violation of rights and liberties in the country but for example regarding compensation claims of the Greek Cypriots compelled to move to Southern Cyprus because of the 1974 Turkish intervention.

From time to time, Turkey complained about the ECHR indulging in Turkey’s domestic affairs and people at the helm of the Turkish state declared with some bold statements that the rulings of the European court were not binding in Turkey. They knew well, however, Article 90 and the clear stipulation that Turkey pledged to respect and implement rulings of international courts established with agreements Turkey accepted and duly endorsed by Turkish Parliament.

Now, is there room to engage in a discussion whether the Demirtaş verdict of the ECHR is binding on Turkey? The decision of the court is binding and Demirtaş should be duly released. Of course, his trial must be continued. Otherwise, if Demirtaş is kept in prison in violation of the ECHR ruling—which is no less than premeditated violation of a law under the legal Turkish framework—Turkey will have to pay a lofty fine and release the former political leader sooner or later.

After all, respecting the law might sometimes be rather expensive or painful.