By MESUT AKMAN
On 14 July 2017, the Turkish Ministry of Justice declared in its press release that the European Court of Human Rights (ECtHR) has dismissed over 12600 applications against Turkey just in the last month. Obviously, this huge amount of cases was related with the post-coup attempt victims.
Last year on 15 July 2016, a coup attempt occurred in Turkey for which the Turkish government put the blame on the Gulen movement. In the aftermath of the controversial coup attempt depicted by the President Erdogan as “a gift from God”, the government declared state of emergency (SoE) that yet turned a never-ending story by being extended until now. Within this regime granting extraordinary powers to the government, over a hundred thousand public servants considered to be a member of or affiliated with the Gulen movement have been dismissed by emergency decree laws.
Bring into mind the fact that the Turkish judiciary has been fully controlled by the Supreme Council of Judges and Prosecutors (HSYK) for the last three years and the emergency decrees were outside the scope of the constitutional review, victims of these decrees had only the possibility of individual application to the ECtHR as an effective remedy at last resort.
The Turkish dismissal practice, attaching a long list of thousands of names as an annex to a decree law, was illegal by various aspects and on many grounds. If one judicial body initiates an examination on the merits of these dismissal cases, the outcome of the cases will undoubtedly be in favour of victims.
Under these circumstances, the ECtHR preferred to reject the application of a dismissed public servant in its Zihni case by using the non-exhaustion of domestic remedies pretext last year. However, legal shortcomings of the emergency decrees had already exquisitely been examined by the Council of Europe Commissioner for Human Rights and the Venice Commission.
In fact, the functioning mechanism of the ECtHR was at stake confronting the Turkish state of emergency practices which have created over a hundred thousand victims. Hoping to alleviate the heavy workload on the ECtHR, the Council of Europe authorities engaged a dialogue with Turkish authorities and advised them to establish an ad-hoc commission to review the emergency measures which will be subject to judicial control. As a fruit of this dialogue, the Turkish government declared the foundation of a SoE inquiry commission to evade from ECtHR’s an eventual violation ruling.
As a matter of fact, if the SoE commission functions in accordance with the essential criteria to be applied in lustration procedure set forth by the Venice Commission, this commission would recover the illegalities of decrees. But employing the minimum human rights standards in Turkish case means the reinstatement of the overwhelming majority of the purged public servants. Declaring that having membership, affiliation or connection to Gulen Movement as an absolute ground for dismissal, the government intentionally established the commission with limited jurisdiction in order to prevent any such undesired result. Hence, according to ongoing policies of the government, it is highly likely that this will be no more than a sham commission.
Although Turkish academics and law practitioners unanimously emphasize that the SoE commission cannot be considered an effective remedy given its composition and authority, the ECtHR adopted recently a decision of inadmissibility in Koksal case to address over a hundred thousand of victims to the SoE commission.
And subsequent to Koksal case on 14 July 2017, the Turkish Ministry of Justice declared that the ECtHR has dismissed over 12600 applications of decree victims on the basis of this decision. Not having made any declaration about the situation, within the so-called positive engagement framework with the Turkish government, the ECtHR apparently tasked the Turkish side to tell the good news as a congratulation message at the first anniversary of the foiled coup.
The grounds of the negative attitude adopted by the ECtHR towards post-coup attempt cases might be speculated. The spouse of the Turkish judge was a dismissed professor by a decree law. Hence, a conflict of interest issue raised for the judge who has a major role in the controversial post-coup cases. Moreover, right after the coup attempt the Turkish society considered legitimate and endorsed the witch hunting Gulenists in which the rule of law and presumption of innocence principle has been suspended. Given that the Turkish staff of the Court may not be immuned from this biased stance against the post-coup victims, the “Made in Turkey” decisions of the Court cannot be exempted from being questionable regarding the impartiality issue within these sensitive and political cases.
As the ECtHR is full aware of it, the purge being carried out by the government is illegitimate and brutal. The so-called endeavours engaged for overcoming the problem has been only dilatory and further deepening the victimization in Turkish society on a vast scale from Gulenists to extreme leftists. Briefly, the fruit of the dialogue between these entities has been unfortunately poisonous.
- http://www.inhak.adalet.gov.tr/duyurular/faaliyet_duyurular/2017/Temmuz/basin-ilani.pdf ↑
- https://www.rt.com/news/351630-erdogan-turkish-military-relationships/ http://www.independent.co.uk/news/world/turkey-coup-conspiracy-theory-erdogan-military-gift-from-god-soldiers-istanbul-a7140516.html ↑
- See the Venice Commission report on Peace Judgeships in Turkey, para. 42-52; available at http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2017)004-e ↑
- http://hudoc.echr.coe.int/eng?i=001-169704 ↑
- See the Council of Europe Commissioner for Human Rights’ Memorandum on the human rights implications of the measures taken under the state of emergency in Turkey, https://rm.coe.int/16806db6f1 ↑
- See the Venice Commission’s opinion on the state of emergency measures taken in Turkey, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)037-e ↑
- Ibid, para. 220-223 ↑
- Impartiality of the ECtHR towards Gülenist victims by Faruk Ozcan, https://www.turkishminute.com/2017/06/27/opinion-impartiality-of-the-ecthr-towards-gulenist-victims/ ↑
- Ibid. ↑