The Power(lessness) of Human Rights Mechanisms in Turkey – An Interview with Benan Molu

Date published: 28.04.2021

The walls are closing in on civil society in Europe and globally. Human rights violations are part of the day-to-day life of many citizens. These regressions of fundamental rights and attacks on civil society increasingly diminish the democratic space for activism and threaten the safety of its defenders. In this interview series, Hafiza Merkezi Berlin wants to highlight the struggles for human rights and against the shrinking civic space by interviewing the people on the frontlines. In these national and transnational cases, we find patterns of attacks, but also examples of local, national, and transnational solidarity that empower and equip civil society in the struggle.
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What do you do, when the trusted mechanisms of rule of law are no longer seen as legally binding but are up for interpretation? This developing attitude towards the judgments of the European Court of Human Rights (ECtHR) is a phenomenon that is more and more observable in members of the Council of Europe, with Turkey being a key violator of the European Convention on Human Rights. The cases of Osman Kavala and Selahattin Demirtaş are two examples in which politics are overshadowing the protection of fundamental human rights. The ECtHR has taken more significant acts recently and found Article 18 violations, a very new phenomenon in terms of every country.  But even with this very serious action being taken, Turkey has not adequately responded.

Melis Gebes talked to lawyer Benan Molu about the recent developments concerning judgments of the ECtHR, how the government in Turkey is finding ways to dismantle the rule of law in the country and what alternatives are left for human rights defenders.

Could you please give an overview of the situation in Turkey regarding the European Court of Human Rights judgments and their implementation? 

Benan Molu (BM): According to the European Court of Human Rights’ (ECtHR) statistics, in 2020, Turkey is the country that the ECtHR delivered the second-highest number of judgments against, after Russia, and the country with the most violations of at least one article of the European Convention on Human Rights (ECHR). Moreover, between 1959-2020, Turkey has been the country that the ECtHR rendered the highest number of judgments against, concerning a total of 3.742 cases. Violations of the ECHR were found in 3.309 of these cases, making Turkey the country that violates the ECHR the most. With findings of violations of the right to a fair trial 953 times, the freedom of expression 387 times, and the freedom of assembly and association 108 times, Turkey is the member state of the Council of Europe (CoE) that violates these articles of the ECHR the most.

In fact, such a large number of judgments finding a violation of the ECHR shows that the ECtHR judgments are not implemented in a way that prevents the repetition of violations. According to the statistics of the Council of Europe’s Committee of Ministers (CoM), which supervises the implementation of ECtHR judgments, in 2019, Turkey was the country that failed to comply with the ECtHR rulings the second most, with 689 judgments pending implementation. The reports published by the CoM demonstrate that the number of repetitive judgments, as well as their implementation period, increases every year.

How does this situation concern the cases of Osman Kavala and Selahattin Demirtaş? Are there any patterns observable in these two cases demonstrating the misuse of legal guarantees?

BM: The judgments concerning Osman Kavala, businessperson and prominent civil society actor, and Selahattin Demirtaş, former co-chair of the opposition Peoples’ Democratic Party (HDP) and prominent politician, differ in one significant aspect from other violation judgments I mentioned above that are not implemented. These two judgments are, for now, the first and only judgments against Turkey where the ECtHR found a violation of Article 18 of the ECHR, which sets forth a limitation on use of restrictions on rights, establishing that “the applicants were detained in order to be silenced and punished, without any concrete evidence, for being an opposition politician and a human rights defender.”

In reaching this conclusion, the ECtHR examined the evidence and accusations on which Kavala and Demirtaş were detained and the developments that occurred when their detention, the continuation of their detention, and their re-detention just as they were about to be released were ordered. The ECtHR took many things into account: statements by high-level state officials and news reports by pro-government media outlets that referred to Kavala and Demirtaş as “terrorist, agent, and traitor,” thereby violating the presumption of innocence principle, the temporal link between these statements and the moment when judicial authorities took action, the criminal laws applied, the general state of human rights in the country, and the “judicial harassment” used especially against dissidents.

What are the tactics and/or arguments that are being used by the Government to avoid implementation?

BM: In such cases as Kavala’s and Demirtaş’s, while establishing that the applicants were detained for political reasons and/or without any concrete evidence, the ECtHR also holds that the government takes all necessary measures to put an end to the applicants’ detention and to secure their immediate release. From this point on, the applicants must be released, acquitted, or their conviction must be reversed if there is no new evidence other than the one examined in the ECtHR judgments.

The government has started to use several tactics to avoid the implementation of such rulings. A vicious circle has been created where a practice of detaining, initiating a new investigation when about to issue a release order, detaining again, and sentencing is observed. For instance, in the case of Demirtaş, in order not to implement the 2018 ECtHR judgment, his conviction in another trial was upheld by the appeals court with jet speed. As both in Demirtaş and Kavala cases, to prevent the applicants from being released, new investigations were initiated, that pertain to the factual and legal basis that is substantially the same as the case the ECtHR already addressed in its judgment. As part of these investigations, they were re-detained just as they were about to be released from prison. These re-detentions were tried to be legitimized on the grounds that they were ordered within different criminal proceedings than the ECtHR examined. A large number of investigations and trials were thus used as a tool to criminalize these persons and to justify their deprivation of liberty.

The ECtHR discerned that these tactics were first developed by the government in the case of Demirtaş and later in the case of Atilla Taş, a former singer and a columnist. It was established by the ECtHR that detaining persons for a second time after their release, without the possibility of being released, may lead to circumvention of the law and if this fact is ignored, the judicial authorities may continue to deprive individuals of their liberty with further investigations based on the same facts.

The non-implementation of the ECtHR judgments has always been an issue in Turkey. However, especially in the last five years, there has been an explicit resistance to implement the Constitutional Court and ECtHR rulings. As in the examples of the judgments concerning journalists Can Dündar and Erdem Gül, there have been calls declaring that the Constitutional Court judgments are not binding and should not be implemented. This later led to journalists Şahin Alpay and Mehmet Altan not being released by the first instance courts that resisted the Constitutional Court’s decision. For the first time, we are going through a period in which it is discussed whether the final and binding ECtHR decisions are “advisory.”

In this context, the conduct of the Constitutional Court should be highlighted as well. The Constitutional Court delivered very harsh judgments by emphasizing the rule of law when its own judgments were not implemented. Now it has started to render judgments where it was held that some ECtHR judgments may not be implemented. Demirtaş’s individual applications concerning the non-implementation of the ECtHR judgment about him and his re-detention were either rejected without an examination on the merits or have been pending for a ruling by the Constitutional Court for a very long time. Concerning Kavala’s individual application, the Constitutional Court found no violation of his right to liberty and security, although the CoM cautioned Turkey multiple times for not ensuring the implementation of the ECtHR judgment and his immediate release. The Constitutional Court ignoring the political motive behind these detentions, which have now become an inhumane treatment, and finding no violation, is one of the problems feeding this system the most.

What is the situation in the Council of Europe’s other member states in terms of Article 18 violation, as well as the non-implementation of the ECtHR judgments?

BM: When looking at the ECtHR judgments finding a violation of Article 18 of the ECHR, it can be seen that the states that violate this article the most are also the states that resist implementation of the ECtHR judgments the most. Azerbaijan and Russia take the lead in this regard.

Judgment on the violation of Article 18 in conjunction with Article 5, which means that a state deprives its citizens of their liberty for a malicious and ulterior purpose through the abuse of criminal laws, is a very serious and rarely made judgment. Therefore, both the ECtHR and the CoM attach particular importance to the ‘spirit and consequences’ of such judgments and emphasize that the person concerned should be immediately released, receive compensation, and have other adverse consequences arising from the violation (such as judicial control, international travel ban, cancellation of attorney license, ban from being a candidate in elections, sentencing in other trials to avoid ordering their release) eliminated. If even one of these consequences has not been remedied, that judgment is considered not yet implemented. The states that used to delay adopting measures to remedy the consequences of a breach and to prevent the recurrence of similar violations have now stopped even paying full compensation.

What is lacking of the Council of Europe’s mechanisms to hold member states responsible for not fulfilling their legal obligations to comply with the ECtHR judgments? In your opinion, would there be any other sanction mechanisms possibly to be applied for those states?

BM: Turkey is not the only state resisting to implement the ECtHR judgments. There is a heavy resistance in states such as Azerbaijan and Russia as well. The former secretary-general of the Council of Europe said in this context that “Europe is going through its worst era since the Second World War.” Interpreting the non-implementation of the ECtHR judgments as a challenge to the Convention system, the Commissioner for Human Rights stated that this challenge, that has been made more open and louder by states in recent years, would lead one state first, then another state, and then another one to decide on their own which judgment to implement and which do not, and thus, would result in the collapse of the Convention system.

Therefore, both the ECtHR and the CoM established a sanction mechanism to protect its own assets and the Convention system itself. Accordingly, a series of sanctions to be imposed on a state that does not implement the ECtHR judgments were determined by amending Article 46 of the ECHR, such as complaints to the ECtHR by the CoM, suspension of the right to vote, and expulsion from the Council of Europe membership. This sanction mechanism is very new and we have only one example, Azerbaijan, in which it has been applied for now. International human rights organisations called the CoM to initiate a complaint process against Turkey due to the non-implementation of the judgments concerning Kavala and Demirtaş.

The European Union has also introduced a new global sanction mechanism to be imposed on states that commit serious and systematic human rights violations, regardless of whether they are a member or not. The discussions on the application of this mechanism point to states such as Russia, Hungary, Poland, and Azerbaijan, as well as Turkey.

Although there has not been a significant improvement in Turkey’s relations with the European Union, there are states that insist on the imposition of a sanction on Turkey, as well as states that are unwilling to do so. In order for the CoM to operate this sanction mechanism, a majority vote of two thirds of the 47 member states is required. For the sanction mechanism of the European Union, unanimity is required. Considering the high number of states committing human rights violations and the political structure of the institutions that will decide to impose sanctions, these rates are very likely to be sustained by states that think of the possibility that one day it may otherwise turn on them. Therefore, application of these sanction mechanisms seems to be difficult.

Why has the ECtHR been more preferred compared to the other international human rights mechanisms? In face of the recent developments that have rendered its effectiveness questionable, are there any debates on applying to other mechanisms?

BM: I think the most important reason for this is that it is a way known by applicants and lawyers, and the application process is easier than other international mechanisms. In Turkey, everyone says, “we will go to the ECtHR,” as soon as there is a violation of rights, even before they start exhausting the domestic remedies. Because everyone believes that they cannot get any results in domestic law. The ECtHR is seen as the first and only place where justice will be provided for all, especially after the violation decisions of the 90s. You can make applications in Turkish without paying any fees other than postal and photocopying costs. But, for example, when applying to United Nations mechanisms, you have to apply in English and translate additional documents into English. This is an obstacle to filing an application.

In addition to familiarity and ease of application, the most important factor is that the ECtHR judgments are binding. The ECtHR rulings can also impose a number of measures that are suitable for eliminating the violation in question, such as compensation, acquittal, release, reopening of the investigation or trial. Due to the fact that everyone preferred the ECtHR for these reasons, the decision-making period from the ECtHR started to be very prolonged and the bindingness of the ECtHR judgments was opened to discussion. This resulted in the use of alternative mechanisms, such as the United Nations Working Group on Arbitrary Detention, especially regarding violations of rights after 15 July. But in a place where even the bindingness of the ECtHR judgments is open for discussion if a violation decision is taken through these mechanisms, it is not even considered as a “recommendation” and not implemented. Besides, according to Article 35/2-b of the ECHR, if you have already made an application to another procedure of international investigation or settlement regarding a violation of rights, you cannot apply to the ECtHR. If you do, your application may be rejected. Therefore, despite everything, we see that the ECtHR continues to be preferred.

Benan Molu is a human rights lawyer and researcher based in Istanbul, Turkey. She has been representing applicants, including many human rights defenders, before the Constitutional Court of Turkey and the European Court of Human Rights. She also has been delivering training sessions on human rights law and organizing moot court on individual application to the Constitutional Court between universities. She is the author of numerous books and reports concerning human rights violations and the editor-in-chief of Anayasa Gündemi, a blog focusing on developments in human rights law and constitutional law.

Melis Gebes holds an LLB (2013) and an LLM (2019) in International Human Rights Law from Istanbul Bilgi University’s Faculty of Law. She is a member of the Istanbul Bar Association (2015). Since 2015, she has been working for the Legal Studies Program of Truth Justice Memory Center (Hafiza Merkezi), dealing with serious violations of human rights that occurred mainly in the context of the Kurdish issue, as well as attacks against human rights defenders and the shrinkage of civic space in Turkey. She has taken part, voluntarily and professionally, in the works of local and international rights-based NGOs that deal with various human rights issues.