2022: A testing year for the Council of Europe and Turkey
/by Ayşe Bingöl Demir, Co-director, the Turkey Human Rights Litigation Support Project
A warm goodbye to 2021 but what comes next?
The human rights community of Turkey was happy to leave behind the difficult year of 2021, but it also welcomed 2022 reluctantly. Because it is not possible to foresee how far -and where else- the non-stop back peddling of the AKP government in human rights, rule of law and democratic standards will go. Led by President Recep Tayyip Erdogan, the government’s adherence to an authoritarian regime, especially since the July 2016 coup attempt, has indeed become more fearless and aggressive over the last couple of years. The extent of the damage of this period to the country’s founding pillars -which already had had serious existential issues before- has caused is yet to be seen. The recent Human Rights Watch report, however, gives us a hint of what it looks like: Turkey’s human rights record has been set back by decades.
Not surprisingly, despite this extremely serious human rights, rule of law and democratic backsliding in the country, the reaction of the international community has been considerably limited. Turkey has a long-standing relationship with the EU, it is a NATO member and part of many UN monitoring mechanisms. Thus, the country has been one of the earliest members of the Council of Europe. The European Court of Human Rights, the most important guardian of the Council of Europe’s founding principles, has been determining individual applications from Turkey for over three decades. Moreover, the country has been an ally and trade partner of a number of western democracies, including the United Kingdom, Germany and the USA despite some setbacks in relations here and there.
In an ideal world, it would not be unreasonable to expect that a country that is part of a vibrant international relations circle would face consequences for its systemic failure to meet its international human rights obligations. But the case of Turkey is a clear illustration that we are far from experiencing the ‘ideal’ as none of these institutions or countries has so far taken an effective and meaningful stand to address the human rights situation in the country. This lack of proper response to the government stifling a whole population with its authoritarian practices has been seen as a contributing factor to the deteriorating situation.
A test case for the Council of Europe and Turkey: Osman Kavala
January 2022 and the months following might bring some changes to this worrying picture. Turkey’s notorious treatment of a prominent human rights defender, Osman Kavala, has become a key case -along with the case of jailed Kurdish opposition politician Selahattin Demirtaş- forcing the international community to review its stance. Mr. Kavala is a personal target of President Erdogan and has been unlawfully detained since November 2017 on bogus charges. Despite a strong judgment from the ECtHR on 10 December 2019 finding that his detention lacked legal basis (Article 5 of the European Convention on Human Rights), that it pursued the ulterior purpose of silencing him and deterring other human rights defenders (Article 18 in conjunction with Article 5), and that the Constitutional Court’s review of his complaints was insufficiently “speedy”(Article 5(4)), the Turkish authorities have been refusing to release him.
In Mr. Kavala’s own words, he is held behind bars because the President wants “to nurture the claim that the 2013 Gezi protests were a foreign plot to overthrow the government. In the absence of any tangible evidence on the matter, the fact that I opposed construction in the [Gezi] park, the reason for the protests, and therefore empathized with the protestors, as well as my relationship with the Open Society Foundation, which was established in our country with the support of George Soros, have become the sole basis of this conspiracy theory. The belief that Soros supported public riots in various countries became the official view in government circles after the failed coup attempt on July 15, 2016.”
After the ECtHR’s judgment became final in May 2020, the Council of Europe’s Committee of Ministers started its judgment implementation supervision process pursuant to Article 46 of the Convention. A coalition of human rights organisations, including the Turkey Human Rights Litigation Support Project, Human Rights Watch, and the International Commission of Jurists, has been actively participating in and contributing to the procedure before the Committee by way of their Rule 9.2 submissions (here, here, here and here) and advocacy efforts. Mr. Kavala’s lawyers have also been regularly updating the Committee about the developments before the domestic courts in their Rule 9.1 submissions. EIN has been playing an instrumental role in the coordination of the efforts and ensuring that the assessments of the stakeholders reach the correct address.
The Committee so far adopted eight decisions and two interim resolutions (here and here) repeatedly calling on Turkey to release Mr. Kavala immediately, to conclude the criminal proceedings against him in line with the Court’s findings and to take all necessary individual and general measures to implement the judgment in its entirety. Along with these steps, the Committee applied other tools to ensure Turkey’s compliance. These included: using stronger language in its criticism of Turkey’s failure; keeping the ongoing detention of Mr. Kavala on the agenda of its each regular and human rights meeting; inviting the Chair of the Committee and member states of the Council of Europe to raise the case with the Turkish authorities directly; and repeatedly emphasising its readiness to take all necessary steps to ensure implementation. Turkey’s response to this, however, has been using different evasive tools, arguments, and tactics to avoid implementation.
Turkey’s evasive judicial tactics to circumvent the ECtHR judgment
Through our joint submissions to the Committee, indeed, as a coalition of NGOs, we identified and drew the attention of the Committee to a number of evasive judicial tactics Turkey has adopted to circumvent the ECtHR judgment, most importantly to avoid its obligation to release Mr. Kavala. Examples of these tactics have included, but are not limited to; (1) issuing a ‘’sham’’ release order while preventing the actual release by issuing another arrest and detention order; (2) initiating multiple criminal proceedings on the same or similar factual and legal grounds which were already reviewed by the ECtHR and arguing that they were ‘new’ grounds to justify further detention orders; (3) issuing chain detention orders given in relation to either the same facts and acts re-classified under different articles of the Penal Code or by re-activating other files initially having no link to Mr. Kavala; (4) making the procedures complex and hard to follow by the Committee, e.g. by adopting a number of unwarranted joinder or dis-joinder decisions and in that way merging or disjoining several voluminous files; and (5) expediting proceedings on need basis to gain the desired result e.g. expediting appeal proceedings.
These strategies have been used by the government to serve multiple purposes: first, to ensure Mr. Kavala remains behind bars no matter what happens at domestic or international level; second, to falsely argue before the Committee that the individual measure of release required by the judgment was in fact implemented; third, to claim that Mr. Kavala’s ongoing detention did not fall within the scope of the Court’s judgment; and fourth, to argue that his ongoing detention was in the scope of ‘new’ charges or cases that were not addressed in the Court’s judgment.
These arguments put forward by the government in lengthy submissions forced the Committee to make a detailed determination, each time, of the developments in the domestic proceedings and measure them against its mandate and the scope of the Court judgment. The Rule 9.2 submissions of the NGOs and Rule 9.1 submissions of Mr. Kavala’s lawyers were, therefore, vital in providing the Committee with the necessary explanation, information and expert analysis on the developments and the government’s claims.
Another striking factor we underlined in our submissions to the Committee has been the complete ignorance of the domestic courts towards the ECtHR’s judgment, more particularly, the Strasbourg Court’s thorough evaluation of the accusations and state of evidence against Mr. Kavala. This ignorance did not only come from the first instant courts and the prosecutorial authorities but the appeal courts and the Constitutional Court as well. Along the process, the government representatives have never stopped using their populist discourse claiming that the ‘westerns powers’ had a political agenda and that the Court judgment was not binding but advisory in nature. The President also continued his public speeches blatantly targeting Mr. Kavala to consolidate his political agenda. We also saw examples of direct interference with the judicial conduct by the government which included promotion of prosecutorial actors in the case to higher judicial roles (one to Deputy Minister of Justice and one to a member of the Constitutional Court).
The Council of Europe Commissioner for Human Rights criticised this picture strongly in a statement dated September 2021 expressing that Mr. Kavala “is a victim of a justice system that has been used to silence human rights defenders, lawyers and journalists and displayed unprecedented levels of disregard for the most basic principles of law, such as the presumption of innocence, no punishment without crime and non-retroactivity of offences, or not being judged for the same facts again.”
Turkey to become the second Council of Europe member facing infringement proceedings
It was against this background that the Committee of Ministers had to conclude in its 30 November-2 December 2021 session that ‘Turkey is refusing to abide by the final judgment of the Court’ in the case of Mr. Kavala. The Committee made it clear that if Mr. Kavala is not released by the Committee’s 2 February 2022 session, pursuant to Article 46(4) of the Convention, it will refer to the ECtHR the question of whether Turkey has failed to fulfil its obligation under Article 46(1) -the obligation to implement final judgments of the Court- particularly in respect of individual measures required in this case.
Launching infringement proceedings is a striking confirmation of Turkey’s flagrant disregard for the Council of Europe’s human rights and rule of law standards and democratic principles. It is one of the most serious measures the Committee can use against a member state under the Convention which has serious legal and political consequences. Turkey will potentially be the second country, after Azerbaijan, in the history of the Council of Europe against which this tool will be applied.
If the Committee refers the case back to the ECtHR and the Court concludes that Turkey failed to comply with its Article 46(1) obligation, more serious steps against the country might follow. This is of course if Turkey continues its refusal to release Mr. Kavala. This scenario might bring to the table of the Committee the sanctions of suspending Turkey’s Council of Europe membership or even expelling it from the Council pursuant to Article 8 of the organisation’s statute.
The decision of the Committee of Ministers to notify Turkey of its intention to launch infringement proceedings seems to not have much impact on the judiciary’s handling of the arbitrary proceedings against Mr. Kavala. As recently as 17 January 2022, an Istanbul Assize Court once again decided on the continuation of his detention. This came as a further confirmation of the appropriateness of the Committee’s decision as well as its fairness and necessity pursuant to Article 46 of the Convention and its past practices.
The Council of Europe must show its firm commitment to its founding principles
Some scholars share concerns over the potential consequences of such robust actions against Turkey and other member states. Accordingly, the government might react to the developments poorly and use this step as a pretext to further its ‘anti-Western’ political agenda which in turn might cause a further drift of the country from democratic principles. They argue that applying more soft tools and keeping an open dialogue might work better. I simply do not agree. A close look at the government’s practices, especially since the July 2016 coup attempt, clearly shows that such strategies have not been helpful in improving the situation in the country. In contrast, the inaction of the international community, including the Council of Europe institutions, has been presented by the government as a justification of its problematic actions and confirmation of their legitimacy. As a result, the government became more abrupt and reckless in the steps it has taken to consolidate its power and adopt its authoritarian agenda.
It must also be borne in mind that the founders of the Council of Europe and the drafters of the Convention and its subsequent amendments had foreseen that there might be instances where the state parties would not comply with their obligation to implement the ECtHR judgments. In response to this scenario, they put in place a mechanism and gave this mechanism tools to use to ensure implementation. Arguing that these tools must not be used in practice for potential consequences, despite the clear roadmap in the Convention and other relevant instruments, means a disregard to the Council’s very own rule of law principles.
Finally, the situation in Turkey does not present an isolated case among the Council of Europe states. It is only one example of growing authoritarianism across Europe. There are several others, such as Russia, Azerbaijan, Hungary, and Poland, who have been going through similar fallouts from the Council of Europe’s founding principles. These countries are learning from each other, they tend to adopt similar policies and measure their next steps according to the challenges one other faces in the process. It is, therefore, crucial for the Council of Europe bodies -as well as individual countries and other international institutions- to show a firm stand and, when conditions are met, to use available political, legal and financial tools designated to be used for the circumstances they were designated for. A position otherwise has a potential, under the current atmosphere, to damage the fundamental values of the Council further and to bring the Council organs into an existential crisis.