CoE reveals ECtHR still gives credit to Turkish gov’t’s ‘remedies’ created for witch hunt victims

Evin Barış Altıntaş, Veysel Ok, Christos Giakoumopoulos and CoE's Daniel Höltgen.

A statement by the Council of Europe (CoE) has revealed that the CoE and the European Court of Human Rights (ECtHR) still give credit to remedies such as the State of Emergency Procedures Investigation Commission (OHAL Commission) and the right for individual applications to the Turkish Constitutional Court (AYM) for victims of a post-coup witch hunt in Turkey seeking a resolution to their grievances.

After victims of a massive post-coup witch hunt targeting alleged members of the Gülen movement started to apply to the ECtHR, the Justice and Development Party (AKP) government of Turkish President Recep Tayyip Erdoğan decided to set up the OHAL Commission on January 23, 2017 as an interim mechanism allegedly to reduce grievances arising out of the dismissal of some 150,000 civil servants from their jobs.

The CoE released a statement on Wednesday after an exchange of views between Christos Giakoumopoulos, CoE director general for Human Rights and Rule of Law, Turkish Media and Law Studies Association (MLSA) President Evin Barış Altıntaş and Vice President Veysel Ok.

Referring to decisions of the AYM and OHAL Commission, the CoE stated that “There is still a presumption that the majority of cases arising from the post-coup emergency measures will be the subject of some form of review at national level. The time taken to effect that review will continue to be an element in considering whether it is an effective remedy, in particular for people in pre-trial detention. At this stage the ECtHR has recognised that the length of examination by the Constitutional Court was not ‘speedy,’ but was acceptable in the exceptional circumstances of the huge influx of cases following the declaration of the state of emergency.”

“The ECtHR’s dismissal of a considerable volume of applications for non-exhaustion of domestic remedies is the simple application of a critical Convention admissibility criterion, a cornerstone of subsidiarity. However, this does not mean that the underlying problems have been resolved. It is vital that the Turkish Courts are in a position to perform their Convention function as the primary guarantors of the rule of law and fundamental rights to the full,” said the statement.

Bringing to mind the various measures taken under state of emergency legislation following a controversial coup attempt on July 15, 2016, the statement said the ECtHR received over 33,000 applications. “The majority of these concerned dismissed civil servants (over 30,000 including 250 judges). 2,000 concerned detention (including 380 judges) and the remainder concerned different issues,” said the statement.

“This has to be seen in the general context of 130,000 civil servants being dismissed and 50,000 persons held in pre-trial detention. The Turkish Constitutional Court received some 80,000 individual applications but dismissed 75,000 of them. The remaining 5,000 cases pending before the Constitutional Court concern the alleged unlawful detention and/or excessive length of detention of individuals,” it added.

The statement went on to say, “As regards the current situation, it is worth noting that the number of cases arriving at the ECtHR each day has diminished significantly (30-40 applications per week as compared with 1,000-1,500 in the immediate aftermath of the post-coup measures).”

Despite the fact that the Constitutional Court has rejected more than 5,000 applications concerning the detention of civil servants and magistrates since December 2017, the CoE statement underlined that “The ECtHR considered the effectiveness of the proceedings before the Constitutional Court in respect of detention in the cases of two journalists (Şahin Alpay (16538/17, 20 March 2018) and Mehmet Hasan Altan (no. 13237/17, 20 March 2018). The ECtHR confirmed its previous finding in the Mercan case that the Constitutional Court did indeed offer an effective remedy.”

The statement also said, “However, given the lapse of time and the number of cases pending before the Constitutional Court, a number of test cases are in the process of being communicated to the Government with a view to examining all legal questions raised in detention cases.”

“Moreover, the ECtHR reserved the right to examine the effectiveness of the system of individual applications to the Constitutional Court in relation to applications under Article 5 of the Convention, especially in view of any subsequent developments in the case-law of the first-instance courts, in particular the assize courts, regarding the authority of the Constitutional Court judgments. In that regard, it would be for the Government to prove that this remedy is effective, both in theory and in practice. The decisions of the assize courts raised serious doubts about the effectiveness of the remedy (Altan at § 142),” said the statement.

The CoE said: “There are at present more than 1,600 cases pending at the ECtHR concerning the lengthy detention of judges (more than 450) and civil servants (approximately 1,150). The ECtHR has communicated seven so-called “leading” or test cases to the Government,” and added: “Thirteen applications concerning the lengthy detention of journalists have been communicated to the Government. As noted above, the ECtHR has already delivered two judgments (Altan and Alpay) following judgments of the Turkish Constitutional Court finding violations of the right to liberty and security and of the freedom of expression. Eleven applications are still pending before the ECtHR.”

The CoE statement also showed that there are 15 applications concerning lengthy detention of members of Parliament pending at the ECtHR, thirteen of which have been communicated to the government. Two applications by hunger-strikers have been communicated to the government by the ECtHR. Also there are 97 applications pending at the ECtHR concerning the revocation of university teachers who signed a declaration criticising the action of the government. None of these has yet been communicated to the government.

The statement revealed that “Of the 1,600 cases involving the detention of civil servants and judges which are pending before the ECtHR, according to the information supplied by the applicants 100 of the detainees concerned have been released on bail. Of the twenty-three detained journalists who brought thirteen applications (one application was lodged by a group of 10 applicants), nineteen have been released,” and continued: “There are other cases concerning detained journalists which pre-date the 2016 coup. Fifteen applications have been lodged by detained members of parliament. Only two of them have been released. Two academics, Nuriye Gulmen and Semih Ozakça, who went on hunger strike after being dismissed from their jobs by a state of emergency decree and detained, were released and ceased their hunger strike.”

Reminding that “According to the information available to the Council of Europe, some 102,000 applications were filed with the ad hoc (OHAL) Commission,” the CoE stated: “The Commission has so far examined 17,000 applications and reintegrated 660 civil servants. It has also just started to examine the applications of associations which were shut down and decided to reopen six of them. These are the first decisions concerning associations. There are still 91,905 applications to examine.”

The CoE concluded: “The post-coup situation in Turkey was, from a Convention perspective, unprecedented, in terms both of the scale of the measures taken in response to the coup and of the volume of applications arriving in Strasbourg. The situation presented special challenges of a legal and, considering the sheer number of cases, a practical nature. Initially the main legal issue was the extent to which effective remedies existed in Turkey which would therefore have to be exhausted before applications could be examined on their merits.”

Turkey survived a controversial military coup attempt on July 15, 2016 that killed 249 people. Immediately after the putsch, the Justice and Development Party (AKP) government along with President Recep Tayyip Erdoğan pinned the blame on the Gülen movement.

Fethullah Gülen, who inspired the movement, strongly denied having any role in the failed coup and called for an international investigation into it, but President Erdoğan — calling the coup attempt “a gift from God” — and the government initiated a widespread purge aimed at cleansing sympathizers of the movement from within state institutions, dehumanizing its popular figures and putting them in custody.

Turkey has suspended or dismissed more than 150,000 judges, teachers, police and civil servants since July 15. On December 13, 2017 the Justice Ministry announced that 169,013 people have been the subject of legal proceedings on coup charges since the failed coup.

Turkish Interior Minister Süleyman Soylu announced on April 18, 2018 that the Turkish government had jailed 77,081 people between July 15, 2016 and April 11, 2018 over alleged links to the Gülen movement.

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