ECtHR decides dismissed civil servants to challenge before Commission by ignoring lack of rule of law in Turkey

The European Court of Human Rights (ECtHR) has decided Turkish civil servants, who have been dismissed after the failed coup attempt on July 15, 2016, must challenge the measure before the commission set up under Legislative Decree no. 685 under the rule of emergency by ignoring the fact that Turkey is no longer a country governed by the rule of law.

In its decision in the case of “Köksal v. Turkey” (application no. 70478/16) the ECtHR has unanimously declared that the application inadmissible. In a press release the court has also stated that the decision is final.

According to ECtHR’s press release about its controversial decision, the case concerns Turkish teacher Gökhan Köksal’s dismissal by an executive decree in the context of measures taken after the attempted coup in Turkey. The Court dismissed the application for failure to exhaust domestic remedies, finding that Köksal had to use the remedy provided for under Legislative Decree no. 685.

ECthR has also stated that the legislation provided for the setting-up of a commission with the task, in particular, of adjudicating upon appeals against measures adopted directly by Legislative Decrees issued in the context of the state of emergency, including the dismissals of civil servants.

According to the ECtHR’s contoversial decision, the decisions taken by the commission could then be appealed against before the administrative courts, whose decisions in turn could be challenged before the Constitutional Court by individual petition. When that highest court had examined a case and given judgment, any individual could submit a complaint under the Convention to the European Court.

ECtHR has also stated that civil servants affected by the relevant measures thus had the possibility of referring their cases to the commission within 60 days from a date to be announced by the Turkish Prime Minister by July 23, 2017 at the latest (six months after the entry into force of the Legislative Decree). The court panel has also warned that the burden of proof as to the effectiveness of this remedy would then be on the respondent State (Turkey).

The applicant, Gökhan Köksal, is a Turkish national who was born in 1978 and lives in Ankara. He was a teacher at the “1071 Malazgirt” primary school in Erzurum (Turkey). On July 25, 2016 he was suspended from his duties in the context of measures taken after a state of emergency had been declared on July 21, 2016.

According to the ECtHR’s press release, “On September 1, 2016 Köksal was dismissed from his post, pursuant to Legislative Decree no. 672 concerning the dismissal of 50,875 civil servants who were regarded as belonging, affiliated or related to terrorist organisations or to organisations, structures or groups which had been found by the National Security Council to engage in activities harmful to the State.

“The Legislative Decree provided that those dismissed could never be reinstated as civil servants and their passports were cancelled. On 28 September 2016 Köksal lodged an individual appeal with the Constitutional Court to challenge his dismissal. The appeal is still pending.

“In the meantime, Legislative Decree no. 685 on the establishment of the commission for the review of measures taken in connection with the state of emergency has been enacted on 2 January 2017 by the Cabinet and published on 23 January 2017 in the Official Gazette. Complaints, procedure and composition of the Court The application was lodged with the European Court of Human Rights on 4 November 2016.

“Relying on Article 6 1, 2 and 3 (a) of the European Convention on Human Rights, Köksal complained of a violation of his right of access to a court, his right to be presumed innocent and his right to be informed promptly of the accusation against him. Relying on Article 7 (no punishment without law), he complained that he had been dismissed on the basis of acts which did not 2 constitute an offence at the time they were committed.

“Köksal also argued that he sustained breaches of his rights and freedoms under Articles 8 (right to respect for private and family life), 10 (freedom of expression), 11 (freedom of assembly and association), 13 (right to an effective remedy) and 14 (prohibition of discrimination).

The decision, which was given by a Chamber of seven, composed as follows: Robert Spano (Iceland), President, Ledi Bianku (Albania), Işıl Karakaş (Turkey), Nebojša Vučinić (Montenegro), Valeriu Griţco (the Republic of Moldova), Jon Fridrik Kjølbro (Denmark), Stéphanie Mourou-Vikström (Monaco), Judges, and also Stanley Naismith, Section Registrar, has stated as conclusion that as Köksal had complained of a violation of his Convention rights as a result of his dismissal, he should have used that remedy in accordance with Article 35, 1 of the Convention. The application was thus dismissed for failure to exhaust domestic remedies pursuant to Article 35, 1 and 4 of the Convention.

ECtHR ruling drew reactions from experts. “ECHR’s faith in TR’s commission defies both experience+logic. Is insult to 100K arbitrarily dismissed workers. Re-assessment must come soon,” Andrew Gardner, Amnesty International’s researcher on Turkey, said in a Twitter message in reaction to the ruling.

“The ECtHR ruling on dismissed people is shameful. It does not respond to any claims about the [lack of ability] of the commission,” said human rights lawyer and associate professor Kerem Altıparmak in a tweet. “Following the ECtHR ruling the government can dismiss another 100,000 people and close all associations. There is no authority to control it, anyhow. Thanks ECtHR!”

The comprehensive report by Stockholm Center for Freedom (SCF) titled “Turkey’s descent into arbitrariness: The end of rule of law” provides detailed information on how the rule of law has lost meaning in Turkish context, confirming the effective collapse of all domestic judicial and administrative remedies available for Turkish citizens who lodge complaints on rights violations.

It lists many recent cases showing the ways in which Turkey’s autocratic President Recep Tayyip Erdoğan and his associates in the government manipulates judiciary through loyalists and partisans. An unprecedented intimidation campaign against independent judges and prosecutors including unlawful arrests and arbitrary assets seizures was pursued by political authorities.

The report has showed Turkey is in breach of the compliance with its international obligations under existing treaties, highlighting recent cases how stick and carrot approach paralyzed independent judiciary.

In addition to jailing thousands of judges and prosecutors, Turkey has also imprisoned hundreds of human rights defenders and lawyers, making extremely difficult for detainees to access to a lawyer in violation of a due process and fair trial protections under the Turkish Code on Criminal Procedures.

The report has stated that the European Court of Human Rights (ECtHR) remains the last beacon of hope for millions of Turks who feel their fundamental rights were violated. SCF had urged the Strasbourg court to take up cases on an emergency procedures and pilot judgement framework to issue landmark rulings to set the bar on protecting human rights in Turkey.

SCF had stated “As the rule of law is no longer applicable in Turkey, the requirement of the court for the complainants to exhaust domestic remedies before filing a case with the ECtHR has become an additional burden on victims. Turkey is going through an extraordinary period, must be declared as a special case and be dealt with an urgent manner.”

A military coup attempt on July 15, 2016 killed over 240 people. Immediately after the putsch, the Justice and Development Party (AKP) government along with President 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.

Turkish government has dismissed about 150,000 public employees by executive decrees under the rule of emergency declared following the failed coup attempt on July 15, 2016. According to a report by the state-run Anadolu news agency on May 28, 154,694 individuals have been detained and 50,136 have been jailed due to alleged Gülen links since the failed coup attempt.

June 12, 2017

 

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