The post-coup Turkey in the Strasbourg case law
The failed coup d’état of July 2016 marked a crucial crossroads for the fate of the Republic of Turkey not only from a political and institutional perspective but also from a legal point of view, particularly in terms of fundamental rights protection.
In the aftermath of the failed coup attempt, defined by the President of the Republic Recep Tayyip Erdoğan as a “gift from God”, the declaration of the national state of emergency went hand in hand with the announcement to the Secretary General of the Council of Europe of the suspension of the European Convention on Human Rights, by means of the derogation clause under Article 15 ECHR.
The following extension of the state of emergency by the Grand National Assembly until July 2018 renewed the Turkish government’s power to issue, without prior parliamentary approval, legally binding provisions with the aim to regulate the emergency situation more quickly than through ordinary legislative procedures. The adoption of such decrees during the state of emergency led inter alia to the dismissal, arrest and pre-trial detention of thousands of public officials, journalists, judges, members of the armed forces and academics, the dissolution of associations and foundations, as well as the banning of media outlets, due to their alleged links with the FETÖ/PDY movement, which is held responsible by Ankara for masterminding the failed coup d’état.
As these massive purges have affected both the judiciary and the Constitutional Court, the victims of the emergency measures started applying since the beginning to the European Court of Human Rights in order to seek redress from the violation of their fundamental rights and freedoms. The Strasbourg judges’ initial reluctance to examine such applications, by reason of the failure to exhaust domestic remedies, has gradually given way to more and more recurrent judgments condemning the Turkish authorities.
In this respect, a new case law – including, among others, the decisions concerning the arrest and detention of the philanthropist and activist Osman Kavala and the leader of the pro-Kurdish opposition party HDP, Selahattin Demirtaş – witnesses a significant change of orientation by the European Court, which has found increasingly frequent infringements of articles 5 (right to liberty and security), 6 (right to a fair trial), 10 (freedom of expression), 11 (freedom of association ) and, last but not least, 18 (limitations on use of restrictions on rights) of the Convention.
This renewed paradigm, marked by an expansion of the Court’s argumentative tools, finds however a hurdle in the (still) problematic implementation of the Strasbourg judgments at the national level, in response to which the Committee of Ministers of the Council of Europe recently launched an infringement procedure against Turkey.
More generally, the aforesaid critical elements should also be read in the context of the controversial constitutional reform that in 2017 transformed the Turkish form of government into a kind of sui generis presidential system, which has been strongly criticised due to the lack of adequate checks and balances.
Lastly, the European Commission’s annual report on the status of Turkey’s accession negotiations to the EU published in October 2021 highlights that, even though the state of emergency is formally no longer in force, serious concerns on the continued deterioration of democracy, the rule of law, fundamental rights protection, and independence of the judiciary have not been addressed, in addition to the alarm raised by the withdrawal from the Istanbul Convention.
In light of the complex scenario outlined so far, the purpose of the focus is to provide some useful coordinates to navigate the relevant jurisprudence of the European Court of Human Rights, as well as offer a bibliographic review of the scholarship that has recently dealt with this topic.
(Focus by Marco Galimberti)
B. Çalı, Byzantine Manoeuvres: Turkey’s responses to bad faith judgments of the ECtHR, in Verfassungsblog, 2020
B. Çalı, The Whole Is More than the Sum of its Parts. The Demirtaş v Turkey (No 2) Grand Chamber Judgment of the ECtHR, in Verfassungsblog, 2020
B. Çalı, No rule of law?: Ne venez pas à Strasbourg, in Verfassungsblog, 2021
B. Çalı, Withdrawal from the Istanbul Convention by Turkey: A Testing Problem for the Council of Europe, in EJIL:Talk!, 2021
N. Christofis, Erdoğan’s ‘New’ Turkey. Attempted Coup d’état and the Acceleration of Political Crisis, Abingdon-on-Thames, 2020
T. Collis, Turan and Others v Turkey and the Limits of Judicial Policy to Address Judicial Overload, in Strasbourg Observers, 2022
L. De Grazia, Constitutional coup e democrazie illiberali: l’esperienza della Turchia, in Rivista AIC, 2018, 380-420
E. Demir-Gürsel, B. Çalı, Stay Away from Using your Constitutional Rights, in Verfassungsblog, 2020
S. Doğan, Analyzing authoritarianism and democracy through academic freedom in Turkey, in Nuovi Autoritarismi e Democrazie: Diritto, Istituzioni, Società, 2021, 172-185
A. Donald, Time for Strasbourg to Open its Doors to Turkey’s Purged Public Servants, in Verfassungsblog, 2019
M. Galimberti, Il mancato golpe turco e i decreti legge di emergenza: l’allarme lanciato dalla Commissione di Venezia, in Quaderni Costituzionali, 2017, 591-594
T. Groppi, Turchia 2017: l’attacco allo stato di diritto e il fallimento della condizionalità europea, in Osservatorio AIC, 2017, 1-23
M. Hakan Yavuz, B. Balci, Turkey's July 15th Coup: What Happened and Why, Salt Lake City, 2018
A. Kula, An Unconstitutional Setback: Turkey’s Withdrawal from the Istanbul Convention, in Verfassungsblog, 2021
D. Kurban, How Many Times Can the ECtHR Turn its Head. Selahattin Demirtas v. Turkey and Kurdish disenfranchisement, in Verfassungsblog, 2021
A. Mimar, Recognizing Turkey’s Anti-Rule of Law System, in Verfassungsblog, 2020
V.R. Scotti, ‘Vogliamo i colonnelli’?: riflessioni preliminari sul fallito colpo di stato in Turchia e sull’evoluzione del ruolo dei militari nell’ordinamento costituzionale, in Osservatorio AIC, 2016, 1-20
V.R. Scotti, Il golpe in Turchia e la Corte europea dei diritti umani: brevi note critiche sulle decisioni di irricevibilità per il mancato previo esperimento dei ricorsi interni, in Osservatorio AIC, 2017, 1-11
I. G. Şen, The Final Death Blow to the Turkish Constitutional Court: The Appointment of the Former Chief Prosecutor, in Verfassungsblog, 2021
T. Şirin, N. C. Orcan, The Symbolic Downfall of the ECtHR in Turkish Public Opinion: The Public Image of the Court after Judge Spano’s Visit, in Verfassungsblog, 2020
E. Sommario, Stato d’emergenza in Turchia: prime risposte dalla Corte europea dei diritti umani, in SIDIBlog, 2018
M. Tokatlı, A Turkish Fairy Tale About a New, Civilian Constitution, in Verfassungsblog, 2021
E. Turkut, Has the European Court of Human Rights Turned a Blind Eye to Alleged Rights Abuses in Turkey?, in EJIL:Talk!, 2016
E. Turkut, The Köksal case before the Strasbourg court: a pattern of violations or a mere aberration?, in Strasbourg Observers, 2017
A. Yildiz, Continuing Violation: The Legality of Mass Arrests of Lawyers in Turkey, in Verfassungsblog, 2020
A. Yildiz, L. Spencer, The Turkish Judiciary’s Violations of Human Rights Guarantees: The ECtHR’s Recent Parmak & Bakir Judgment and Turkey’s Post-Coup Terrorism Trials, in Verfassungsblog, 2020
V. Zagrebelsky, Violation of Freedoms and Judges in Turkey, in Verfassungsblog, 2020