Authors: Oleg Soldatov* and Gülden Deniz Tokmak**

During the first terms of the AKP government, corresponding roughly to the period 2002-2009, the then Prime-Minister Erdoğan was keen to stand on the path for pro-European agenda. However, as the relationship with the EU and the Council of Europe slowly deteriorated, Turkey turned its face toward the East. Some claim that this move away from Europe was accompanied by the process of weakening of the principles of human rights and democracy, and that Turkey gradually started to assume the characteristics of an authoritarian state.

In the middle of July 2016 a military coup was attempted in Turkey . The insurgents accused the government of abolishing fundamental rights and freedoms and departing from the secular democratic legal structure based on the separation of powers. On 20 July 2016, the Council of Ministers declared a nationwide state of emergency in Turkey for a period of three months relying on Article 120 of the Constitution and Article 3 of the Law on the State of Emergency .

Since then, the state of emergency has been extended on five occasions, and the current renewal will end on 18 January 2018 . As of 31 December 2017, the Government issued 30 emergency decree laws . As a result, according to Human Rights Watch , over 100.000 civil servants were dismissed or suspended; over 160 media outlets were closed down and 370 NGOs were suspended.

People who were dismissed are now accused of having a membership of, or a relation to, connection or contact with terrorist organizations or groups in particular, the US-based Islamic cleric Fethullah Terrorist Organization (FETÖ) . Among other things, after the failed coup, the Government accused the ByLock encrypted messaging app users of having a link with such organizations. The Turkish Intelligence Agency (MIT) submitted a list which comprises 53.000 people who downloaded the app and the Turkish courts use this list as an evidence of having a link to the FETÖ. The Government claims that this app may have been created by the FETÖ to communicate among themselves. Besides, holding a bank account at Bank Asya, affiliated with FETÖ, was a reason for an accusation to have a link with this organization.

A great number of the people dismissed tried to seek justice at the European Court of Human Rights (hereinafter – the Court), lodging applications relying on Articles 6 (fair trial), 7 (no punishment without law), 8 (right to respect for private and family life), 13 (right to an effective remedy), 14 (prohibition of discrimination) and 15 (derogation in time of emergency) of the European Convention on Human Rights. However, the Court rejected about 25.000 cases related to the arrests and dismissals pursuant to emergency decree laws. In its inadmissibility decisions, the Court largely ignored Venice Commission’s criticisms.

In the case of Köksal v. Turkey , which appears to be a leading case for this category of applications, Mr Gökhan Köksal, a primary school teacher, was dismissed from his position in compliance with the Emergency Decree Law No. 672 along with other 50.875 civil servants. The Court advised him to exhaust the newly-invented domestic remedy, namely, to lodge his complaint before the Inquiry Commission on the State of Emergency Measures set up in the aftermath of the attempted coup (hereinafter - the Commission). In Köksal case, as well as in all the other cases from this category, the Court did not take into consideration the merits of the application, which was rather declared inadmissible based on the “non-exhaustion of domestic remedies” inadmissibility criteria under Article 35 of the Convention.

The Commission on the State of Emergency Measures was established pursuant to Emergency Decree Law No. 685 . It should be noted that the Commission faced numerous criticisms even before it became operational. In particular, the authorities appointing the members of the Commission are the same bodies that had previously made the decisions of dismissals and dissolutions. The Commission seems to be under-staffed and there are no safeguards to ensure independence and impartiality of its members; the procedure before the Commission is structured in a way that makes arguing one’s point extremely hard. Last but not least, the decisions rendered by the Commission are open to judicial review so it did not make any sense to establish the Commission in the first place.

Over 100 000 applications were lodged to the Commission, which delivered its first decisions only on 22 December 2017. Half a year after the Köksal category of cases had been declared inadmissible, the Commission is yet to deliver its first decisions.

The question is whether the Strasbourg court exercises excessive formalism in the Köksal category of cases, sending a great number of Turkish applicants to fight a battle before the Commission. Does this inadmissibility decision contradict the usual requirement that “normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged,” as laid down in the Akdivar and Others v. Turkey judgement?

In the same judgement, the Court noted that “the existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness” and that in the context of the rule of exhaustion of domestic remedies the Court “must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate.” Indeed, the Court previously held that Article 35 of the Convention “must be applied with some degree of flexibility and without excessive formalism”. Why has not the Court applied flexibility in the present case?

In the “ideal world” the governments should be never able to influence the agenda of the ECtHR. Nonetheless, some of the decisions of the European Court of Human Rights could be regarded as politically motivated: the way the judges are appointed to the Court and the dynamics of relationships between the Court and the Council of Europe Member States are vaguely hinting at this. At the same time, if one hypothesizes that this inadmissibility decision in the Köksal category of cases was part of the efforts of the Council of Europe community to “pacify” Turkey and to leave room for future negotiations on other issues, this tactics has most likely failed: Turkey withdrew its extra-budgetary funding of the Council of Europe.

It remains to be seen whether in the Turkish context the rejection of almost 25 000 post-coup applications by the Court presents an isolated case, or whether the Strasbourg position will impact the overall human rights struggle of Turkey, and, specifically, the fight for freedom of expression.

* Oleg Soldatov is a PhD researcher at Bocconi University in Milan. He worked as a lawyer at the European Court of Human Rights from 2011 to 2014 and as a legal advisor at the Council of Europe in 2015-2016.
** Gülden Deniz Tokmak is a human rights activist holding an LLM from Çağ University and an MA in Human Rights and Multi-Level Governance candidate at the University of Padova.

Tags: Turkey ECHR_case-law Freedom_of_expression Political_pressure