Turkey has failed to adapt to Europe’s legal sphere: Former ECHR judge Rıza Türmen

Barçın Yinanç - barcin.yinanc@hdn.com.tr

Turkey has failed to adapt to Europe’s legal sphere and the situation in the country has worsened markedly since the July 2016 coup attempt and under the state of emergency, according to former ECHR judge and CHP deputy Rıza Türmen.

“The situation in Turkey has become even more difficult since the July 2016 coup attempt and after the declaration of the state of emergency. There are gross violations of human rights,” Türmen told the Hürriyet Daily News .

What is the latest situation in terms of Turkey’s standing with the ECHR?

The further Turkey moves away from democracy, the weaker human rights protections become in the country. The European Convention on Human Rights tells states what not to do with regard to the rights of individuals. The court has created a legal sphere in Europe where all countries change their laws and practices in order to harmonize with the principles of this legal sphere. But a number of countries - such as Turkey, Russia, Ukraine and Moldova - still fail to do that. These countries cannot adapt to the ECHR legal sphere.

The situation in Turkey has become even more difficult since the July 2016 coup attempt and after the declaration of the state of emergency. There are gross violations of human rights, particularly pertaining to Article 5 of the European Convention on Human Rights: Arbitrary detention and arrest, freedom of expression violations, and many cases where people have been expelled from their professional duties, with their passports and properties confiscated.

But hasn’t the coup attempt facilitated Turkey’s situation, as it can now argue that it faced a serious security threat? In fact, Turkey suspended part of the convention after the coup attempt.

The state of emergency does not mean a state outside of the law. Legality is still important. The convention says that if there is a threat to the life of the nation then you can declare a state of emergency and you can suspend only certain articles of the convention. In addition the state of emergency measures you take should be proportionate.

Unfortunately, many of the measures that Turkey has taken with state of emergency decrees are not even related to the coup or proportionate. Even under the Turkish constitution, state of emergency decrees must related to the subject of the state of emergency. But many such decrees in Turkey are completely unrelated to the coup, and this method of making laws has now become a permanent governing system in Turkey. What can the relationship be between the coup attempt and academics expelled from universities?

Turkey claims they are members or sympathizers of an illegal organization.

[Constitutional law professor] İbrahim Kaboğlu is a sympathizer? Nobody buys this. What’s more, state of emergency decrees should also be limited time-wise. When the state of emergency is lifted, these decrees should also become invalid. But they have changed the law and even after the state of emergency ends the laws will prevail.

How will the ECHR react to this?

What slightly eased Turkey’s situation was the establishment of the special commission dealing with all people affected by the decrees. From the perspective of the ECHR, if a national domestic remedy exists then you have to exhaust it before applying to the ECHR, so people wondered whether this commission could be an effective domestic remedy. Complainants can also apply to administrative courts against decisions of the commission. But many victims say the commission does not function well as a remedy.

We have still not seen a single decision from the commission. And even once it makes decisions it will take many years to take the case to the ECHR. Complainants will have to go to the Constitutional Court after the administrative court decision and only then will they be able to go to the ECHR. The fact the process takes so long time renders the commission ineffective.

What is the latest situation in terms of Turkey’s standing with the ECHR?

Turkey claims they are members or sympathizers of an illegal organization.

How will the ECHR react to this?

What about the role of the Constitutional Court?

The right make an individual application to the Constitutional Court is rather new. In the first years after this change the Court’s judgments were based on the principles of the European convention. The ECHR examined these judgments and decided that it was an effective domestic remedy. But this may now be changing. If the Constitutional Court does not base itself on the principles of the ECHR, the ECHR could rule that it is no longer an effective remedy. It did so with Azerbaijan.

After the coup attempt, the Constitutional Court judgments have either been non-existent or not in accordance with the ECHR. The Court even expelled two of its members without proper legal justification. The risk is that the ECHR might say the Constructional Court is no longer an effective domestic remedy so people can apply to the ECHR without first having to go through the Constitutional Court in Turkey.

Turkey claims that it is facing an extraordinary situation and that it will take time to normalize and deal with all these applications.

I think this illusion has now come to an end. It is no longer the case that Turkey’s survival is at stake. Everything is justified under this disguise. The [outlawed Kurdistan Workers’ Party] PKK has existed for over 30 years. But if Turkey’s survival was threatened by the PKK, the country would have been finished by now. The state of emergency was recently extended for a fifth time. Is there really a situation right now that threatens the existence of the nation?

One has the impression that the ECHR is relieved that cases have been referred to the commission, since thousands more applications would have added to its already heavy work load.

The ECHR is really crushed under the workload. While the victims of the state of emergency are in one pile of cases before the court, there is also another pile of cases related to freedom of expression and depravation of liberty. The cases about jailed journalists and human rights defenders, meanwhile, are different. The ECHR has given priority to these cases and you can expect soon the cases of the journalists to be concluded. This will be a major decision because the ECHR will also examine Turkey’s state of emergency and the suspension of the articles of the convention, in order to see whether it is in accordance with the convention.

So the upcoming ruling will set precedent for other cases?

Sure. In Europe it is not acceptable to imprison a member of parliament, for example. No one can convincingly explain why philanthropist and activist Osman Kavala is in prison either.

What will be the consequences of such a ruling? Turkey has paid fines while postponing the execution of certain decisions in the past.

There is a total misconception that you can violate the Convention and simply pay the fine. But that’s not the case. The aftermath of the ruling is supervised by the committee of ministers, which will further increase its pressure if a judgment is not properly executed.

But Turkey is indeed fighting against a very unique, shadowy illegal organization suspected of being behind the coup.

If you are a democratic country you have to accept that you must confine yourself within the limits of legality. This is why democratic countries fight against terrorism with one hand tied. The problem in Turkey is not whether or not you are putting up an effective fight against [the Fetullahist Terrorist Organization] FETÖ, the problem is that the whole opposition is oppressed under the cloak of fighting against FETÖ.

Turkey’s Supreme Court recently ruled that the use of the smartphone application ByLock can be considered as evidence of membership of FETÖ.

This is not enough to constitute evidence. The ECHR won’t accept it. It should be supported by other evidence.

What is the likely scenario in the near future in terms of the ECHR’s rulings on Turkey?

It won’t drag on for the next 10 years. The journalists’ cases will be completed quite soon, and most likely they will end up with a ruling that a violation has occurred. Turkey will be once again be sentenced by the court.

So are we heading to some sort of clash?

Of course. Turkey has already recently had a clash in the Parliamentary Assembly of the Council of Europe, and it was so disturbed that it decided to cut its contribution to the Council of Europe. This created a very bad impression that Turkey is trying to use its contribution as blackmail: “If you don’t criticize I will pay, but if you criticize me I will not pay.”

Turkey’s list of candidates to replace the current judge at the ECHR has now been rejected three times.

All candidates must have certain qualifications. But what the government wants is to send a judge who will protect the interests of the government. This is a very wrong approach. If as a judge you give the impression that you are the agent of the government then you are finished; no one will listen to you and you will become an outsider.