Ombudsman debate in light of the ECHR’s judgment

If you head to the European Court of Human Rights (ECHR) website and browse through the execution of judgments section, you will see a long list of court judgments that Turkey has not implemented.

One of the judgments on this list has the title, “14/09/2010 DINK/Turkey.” In other words, it is the judgment in which the ECHR convicted Turkey because of several violations of rights in the case against Hrant Dink, the Turkish-Armenian journalist slain on Jan. 19, 2007.

The ECHR, in this file, ruled that Turkey violated three separate articles of the European Convention on Human Rights. These are Article 2 of the right to live, Article 10 of the right to freedom of expression and Article 13 about the lack of an effective investigation.

The violation ruling on the “right to live” was based on the authorities’ failure to protect Dink’s right to life by not taking effective measures even though they had been informed about assassination plots against Dink, as well as the ineffectiveness of the investigation into public employees who displayed negligence.

However, one of the predominant aspects of the ruling is the approval by Supreme Court of Appeals on July 11, 2006, of the sentence given to Dink for having “denigrated Turkish identity” under Article 301 of the Turkish Penal Code because of an article published in Agos, Dink’s bilingual paper.

The addressee of this violation of Article 10 (Violation of the right to freedom of expression) according to the ECHR is the General Assembly of Criminal Cases of the Supreme Court of Appeals. The assembly approved the ruling in a vote of 18 to six.

One of the names who signed off on the ruling is one of the members of the 5th Criminal Department of Supreme Court of Appeals, Nihat Ömeroğlu.

Ömeroğlu was elected to the newly created post of ombudsman of Turkey in a recent parliamentary vote with the support of ruling Justice and Development Party deputies. In this post, he will “review all kinds of actions and proceedings of the administration, its attitude and conduct, [while doing so] with a sense of justice based on human rights [to determine] whether [the government is complying with laws and justice.”

This judgment of the ECHR is significant because it facilitates the evaluation of the position of Turkey’s ombudsman before European law.

As a matter of fact, when the detailed justification of the ECHR judgment is reviewed, it becomes apparent that the ECHR regards the decision of the Supreme Court of Appeals as a landmark in the process leading to Dink’s murder. One of the findings of the court is such: “The court has established that the Turkish court ruling to criminally convict Dink under Article 301 of the Turkish Penal Code [put a spotlight on] Dink before the public, especially before extremely nationalist groups, as an individual who denigrates all those of Turkish origin.”

According to the Strasbourg-based court, “The approval of Dink’s criminal conviction by the Supreme Court of Appeals, this legal procedure alone or together with the lack of protective measures against extreme nationalist militants, carries features of interference in the freedom of expression protected by Article 10/1 of the convention.”

Another issue that the ECHR highlights is the Supreme Court’s definition of the scope of “Turkishness.” The court said, “As long as the Supreme Court defines it as including the values and the traditions possessed by people of Turkish ethnicity, then a controversial situation emerges which contradicts the Constitution’s characterization of all Turkish citizens, regardless of their ethnic or religious identities, as Turkish.”

In other words, the ECHR is emphasizing that this interpretation of the Supreme Court of Appeals is in contradiction with the Constitution’s Article 66, which goes, “Everybody who is a citizen of the Republic of Turkey is Turkish.”

As can be seen, the ECHR has also found it problematic that the Supreme Court has defined Turkishness directly in terms of ethnic identity.

Turkey’s ombudsman, Ömeroğlu, is taking office under the shadow of an ECHR judgment which has this content.

Sedat Ergin is a columnist for daily Hürriyet in which this piece was published on Dec 5. It was translated into English by the Daily News staff.