ECtHR turns back application of dismissed judge over non-exhaustion of domestic remedies

The European Court of Human Rights (ECtHR) has announced that the application of judge Kadriye Çakar, who was dismissed by a decree under Turkey’s State of Emergency over alleged links with Gülen movement following a failed coup attempt on July 15, 2016, inadmissible for non-exhaustion of domestic remedies. ECtHR decided on Friday to turn back the case brought by the dismissed judge Çatal.

Kadriye Çatal, a judge at the Ankara Labor Court, has said in her application that she did not have access to a court and did not have an effective remedy before a national authority to assert her rights regarding the measure dismissing her.

However, the ECtHR claimed that a new remedy was available to Çatal, provided for in Legislative Decree No. 6851, enabling her to challenge the dismissal before the Supreme Administrative Court. The Supreme Administrative Court’s decision could then, where applicable, be challenged before the Constitutional Court by making individual application.

Çatal in her application to ECtHR had submitted that “she did not have an effective remedy enabling her to appeal against the measure dismissing her from office because no appeal lay against measures taken by legislative decree during a state of emergency” and added that “two members of the Constitutional Court and judge rapporteurs working in the top court had been arrested and placed in pre-trial detention.”

As regards an application to the administrative courts, Çatal referred to the judgment of the Supreme Administrative Court of 4 November 2016 in which it had declined jurisdiction to examine the merits of an application for judicial review brought by a judge who had been dismissed by a decision of the Supreme Council of Judges taken pursuant to Legislative Decree no. 667.

The court ruled with regard to the effectiveness of the application to the administrative courts, after the present application had been lodged Legislative Decree no. 685 had designated the Supreme Administrative Court as a court of first instance for the purpose of examining the merits of appeals against measures taken pursuant to Article 3 of Legislative Decree no. 667.

However, the Legislative Decree No. 685, to which the ECtHR refers in its decision, also provides that a State of Emergency Commission be established in order to examine applications made with regards to measures taken in the State of Emergency. The commission, however, has not begun operating. It has not announced yet when it would start processing applications.

Prof. Dr. Kerem Altıparmak, who lectures at the Human Rights Center at Ankara University’s Faculty of Political Science, has wrote in an article published in has stated that: “…The State of Emergency Commission is far from meeting the standards set by the Venice Commission and the case law of the ECtHR. It is obvious that the only purpose of the regulation is to earn some time and to prolong the path to the Strasbourg.”

Despite of all these facts, the top ECtHR decision has based on the assessment that Çatal did not in fact exhaust domestic remedies and she could challenge her dismissal decision before the Turkish Supreme Administrative Court and later, if necessary, before the Constitutional Court.

Turkey declared a three-month state of emergency days after the deadly coup attempt, and has since extended it.  Turkey’s Prime Minister Binali Yıldırım announced on Thursday that a currently ongoing state of emergency will be extended for three more months and remain in effect until July 20. The state of emergency, known as OHAL, has been in force since July 20 of last year, after Turkey experienced a failed coup attempt on July 15. OHAL was supposed to end on April 16. Emergency rule, which is criticized by human rights groups and the opposition for restricting rights and freedoms, was extended twice before, on Oct. 11 and Jan. 3.

Turkey experienced a military coup attempt on July 15, 2016 that killed over 240 people. Immediately after the putsch, the Justice and Development Party (AKP) government along with Turkey’s autocratic President Recep Tayyip Erdoğan pinned the blame on the Gülen movement despite the lack of any evidence to that effect.

Although the Gülen movement strongly denies having any role in the putsch, the government accuses it of having masterminded the foiled coup. Fethullah Gülen, who inspired the movement, called for an international investigation into the coup attempt, 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.

In the currently ongoing post-coup purge, over 135,000 people, including thousands within the military, have been purged due to their real or alleged connection to the Gülen movement, according to a statement by the labor minister on Jan. 10. As of March 1, 93,248 people were being held without charge, with an additional 46,274 in pre-trial detention.

A total of 7,316 academics were dismissed, and 4,070 judges and prosecutors were purged over alleged coup involvement or terrorist links.

March 10, 2017

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