ISTANBUL — Turkey’s lawyers have plenty of reasons to fear President Recep Tayyip Erdoğan’s pledge to reinstate the death penalty after abolishing it more than a decade ago to comply with European Union standards.
The prospect of seeing clients sent to death row is enough to send chills down any attorney’s spine. But bringing back capital punishment would also spell the end of Turkey’s long-stalled accession talks with the EU, remove its obligations to comply with the European Convention on Human Rights and cut off access to the institution that Turkish lawyers have come to regard as the last remaining avenue for justice: the European Court of Human Rights.
For many of the tens of thousands detained in the aftermath of last July’s failed coup, the ECHR has emerged as their only hope. Few trust Turkey’s own judiciary to give fair consideration to their cases; besides, the enormous caseload — along with the dismissal of more than 4,000 judges and prosecutors, a quarter of the total — has thrown the courts into chaos.
Defendants often languish in prison for months without seeing an indictment; a clear violation of the fundamental right to liberty, lawyers argue. Yet successful applications for bail are so rare that a growing number of Turkish lawyers are turning to Strasbourg to get their clients out of detention.
“Our defense strategy is based on future applications to the European Court of Human Rights” — Veysel Ok, media lawyer
“We don’t expect much from the Turkish system,” said Veysel Ok, a media lawyer who has filed ECHR applications on behalf of several prominent journalists, including German-Turkish correspondent Deniz Yücel, who was detained earlier this year. “Our defense strategy is based on future applications to the European Court of Human Rights.”
The ECHR and the Turkish government may soon clash over his strategy, however. Lawyers like Ok are not merely asking the European court to overrule Ankara, but to allow them to bypass Turkish courts altogether — thereby overturning a longstanding ECHR precedent that requires applicants to exhaust all domestic options before turning to Strasbourg.
The Constitutional Court, Turkey’s top legal body, has yet to rule on a single case related to last summer’s failed coup. Two of its members are in prison themselves, and the backlog of pending appeals is said to number 100,000. Paranoia rules the lower courts, with few judges brave enough to defy the government.
The Turkish judiciary has become too politicized and dysfunctional to be considered an effective domestic option, lawyers argue. After waiting for four months for the Constitutional Court to respond to several appeals to his client’s pretrial detentions, Ok went straight to the ECHR.
Turkey’s government, meanwhile, insists the justice system is functioning smoothly and has warned that an ECHR order to free Turkish detainees could further strain relations between Ankara and Europe. Earlier this year, Turkish Prime Minister Binali Yıldırım said the ECHR “would be overstepping their jurisdiction” with such a ruling.
Yet despite Ankara’s warnings, the ECHR appears at least somewhat sympathetic to Turkish lawyers’ argument.
In March, Thorbjørn Jagland, the secretary-general of human rights organization Council of Europe, said the cases of journalists and MPs in pretrial detention should be heard in Turkish courts. But he warned: “If their cases are not being dealt with soon by the Turkish Constitutional Court, the European Court will probably consider whether this is an effective domestic remedy, and just start dealing with their complaints.”
In early spring, the ECHR accepted the cases of Ahmet Altan and Sahin Alpay, two journalists represented by Ok who have spent more than 10 months in pretrial detention. The court has also taken up the cases of other detained journalists in recent months, including that of Deniz Yücel and the arrested editorial staff of the critical newspaper Cumhuriyet.
In a further nod to the Turkish detention cases, the ECHR last week expanded its priority policy to include “deprivation of liberty” in its highest urgency category, in addition to “risk to life or health of the applicant.” Under the updated policy, Ok’s clients — and many others — would, therefore, be fast-tracked by the Strasbourg court.
The ministry of justice declined to comment for this article.
A Sisyphean battle
There is little question that Turkey’s courts are in disarray. As part of a sweeping government purge, more than 4,000 judges and prosecutors were fired, their seats quickly filled with inexperienced recruits. Lawyers say that dealing with a 20-something judge straight out of law school is not uncommon.
With the number of detainees in Turkish prisons grows daily, there are no signs of improvement — on the contrary. The new constitution, approved by a tiny majority of voters in a controversial referendum this April, will further politicize the judiciary: Erdoğan and the Turkish parliament, currently dominated by his Justice and Development party, will now appoint all members of the judiciary’s top disciplinary board, placing the courts under the president’s control. (Previously, half the board’s members were selected by their peers.)
“It’s. Not. Working,” said Ramazan Demir, a human rights lawyer, punctuating each word with a knock on his desk. “One of my clients has been detained for five months, and in those five months, the case had three different judges. I had to explain the case to them. They’re very young and ignorant, the new ones. A friend of mine was placed in a criminal court as a judge right after his graduation from law school. Can you imagine? You need at least 10 years of field experience to become a judge.”
Demir, too, has filed several applications to the ECHR, arguing that the Constitutional Court is not accessible to his clients. Among others, he represents the detained parliamentarians of the pro-Kurdish opposition party HDP, who were arrested last autumn. “Not being able to prevent detention is killing me inside,” he said.
Few judges dare to rule against the government and release detained critics. The consequences are well known: When judges ordered the release of 21 journalists in April, they were promptly suspended, and the journalists were detained again. Lawyers often feel they are fighting a Sisyphean battle. “We have the sense that we’re no longer useful in the Turkish justice system because nothing we do has any effect,” said Ok.
Lawyers frequently complain that the government is interfering with the defense, by monitoring and recording meetings with their clients or confiscating documents, for example. Often lawyers are in the dark about the exact charges against their clients for months, as prosecutors take their time with indictments. In the case against the Cumhuriyet journalists, pro-government newspaper Sabah got hold of the indictment before Cumhuriyet’s lawyers did.
“When I meet clients in prison, a guard comes and listens and there’s a camera in the room,” said Ok. “And documents go missing. For example, Ahmet Altan prepared a handwritten defense but the guards confiscated it. We should have gotten it, but we don’t know where it is.”
Combine that with reports of maltreatment and even torture in Turkish prisons, and it’s no surprise that the upheaval in Turkey has made itself felt in Strasbourg. Currently, about a quarter of cases pending at the ECHR — 23,000 — were filed against Ankara.
“If Turkey leaves the Council of Europe, we might as well close shop” — Veysel Ok
According to the court’s registry, 17,630 of these were filed since the failed coup on July 15 last year. In January, when that number stood at 5,300, ECHR president Guido Raimondi warned the court could become “submerged” if Turkish cases were not processed in domestic courts. The number of cases that make their way to Strasbourg also marks a staggering increase compared to previous years — 2,212 cases were lodged against Turkey in 2015 and 1,584 in 2014.
But if their president makes good on his promise, Turks may not be able to rely on the Strasbourg court for long. After vowing to reinstall the death penalty should his supporters and the government ask him to, Erdoğan has floated the idea of a referendum on the issue.
Reintroducing capital punishment would have the side-effect of ending both the country’s EU accession process and its membership in the human rights organization Council of Europe, thereby relieving Ankara of any obligation to abide by ECHR rulings.
For human rights lawyers and their clients, it’s a disastrous prospect, says Veysel Ok: “If Turkey leaves the Council of Europe, we might as well close shop.”
(This article is originally published in Politico on 13 June, 2017 )