COMMENTARY — The maddening silence of the European Court of Human Rights

Ekrem Dumanlı

The European Court of Human Rights (ECtHR) is betraying its own values by turning a deaf ear to the human rights abuses in Turkey. I would like to explain this through two recent, separate rulings of the top court.

The first one involved the Uludere (Roboski in Kurdish) massacre in which a bombardment by Turkish military jets killed 34 people, including 19 youngsters.

In May, the ECtHR rejected an application concerning the Uludere massacre. The court’s justification was the two-day-late submission of necessary documents by the lawyer for the victims’ families to the Constitutional Court of Turkey, with the European court implying that the lawyer should first complete the legal process inside the country.

According to a Constitutional Court ruling on February 27, 2016, the lawyer, Nuşirevan Elçi, had applied to the high court on time, but after a preliminary inspection of the application documents, the court demanded via correspondence with the lawyer some information that was lacking. The missing information was not crucial, though. Some of the identity and address information of the applicants was not written separately, some contracts between lawyers and clients were not notarized, and some were missing a stamp from a bar association. The court gave the lawyer 15 days for the resubmission of the application. However, the lawyer missed the deadline by two days, which caused a rejection from the Constitutional Court by a majority vote.

Only one member of the court, Osman Paksüt, wrote a dissenting opinion to the ruling, stating that “the Constitutional Court is the final authority for such abuse of the right to life of 34 Turkish citizens whose deaths were caused by state force” and “the late submission [of the application] may have been occasioned by [unavoidable] circumstances,” thus “due to the importance of the matter, a loose interpretation of formal requirements [of the application] would be preferable.”

Moreover, Paksüt objected to the strict implementation of formal requirements for a resubmitted application including missing documents “whose content was already known and could be easily obtained.” To him, the rejection of the court violated the citizens’ “rights to access the Constitutional Court.”

Unfortunately, this was the only minority view. Desperate for a pretext to reject such applications, the court clung to the lawyer’s slight negligence in an effort to guarantee its compliance with the incumbent government.

The sad part of the story is that the ECtHR used the same pretext as the Turkish Constitutional Court when it rejected the application for the case. As a result, no one could be held to account for the Uludere massacre in which 34 people were arbitrarily killed by “state force.”

The second case is about a journalist, Resul Cengiz, who was dismissed from his job at the Zaman daily’s Denizli bureau by trustees who were appointed to the newspaper’s executive board by the government in 2016. Cengiz was also detained by the police on August 5, 2016, after a coup attempt, for which the Turkish government blamed the Gülen movement, and was released pending appeal after 477 days in detention.

Cengiz later spoke out about the rights abuses he encountered in jail. One of them was that while he was sleeping in his cell, guards checked him every hour by turning on the lights and waking him up. This had been occurring almost 10 times a night in prison, he said. After he failed to get any result from his complaints and applications to prison management, he eventually brought the issue to the Constitutional Court’s agenda.

Another complaint of his to the court concerned the prison administration’s arbitrary prevention of access to a newspaper, the Yeni Asya daily, even though he had paid for it.

He initially filed an official complaint, which was immediately rejected. He later appealed to the Denizli 2nd High Criminal Court, but it was denied there, too. He then asked prison management to get the official application forms to apply to the Constitutional Court about the issue, an application that must be filed within 30 days. However, the prison management had ignored his request for a while. When they handed over the application forms to him, the deadline had passed. Cengiz still applied to the top court, but it was rejected because of “late submission.”

Actually, it was expected. The prison administration, which was clearly worried about inmates’ efforts to reach out to higher authorities over the rights abuses they had suffered, had done whatever they could to prevent an application to the Constitutional Court. Even though Cengiz did not give up and did send his application to the court, the only response he got was unjust treatment.

Also applying to the top European court following the Turkish judiciary’s insistent refusals, Cengiz, here, was shocked by the ECtHR’s ruling on the case. Just like the Uludere file, Cengiz’s application was rejected because the Constitutional Court application was not made on time, thus domestic remedies were not exhausted, although in this case Cengiz’s application was late due to the arbitrary prevention by prison management.

Turkey is trying to close the way to the ECtHR

It was no surprise for those who knew that the ECtHR application documents of Koza Holding, which was seized by the government over Gülen links, were confiscated by airport police and that a pro-government newspaper later labeled the application as “treason.” Cafer Tekin İpek, the brother of Akın İpek, who was the owner of the holding, was detained one day after this incident and is still incarcerated.

It would not be wrong to say that thousands of imprisoned people have faced the same treatment from officials when they want to apply to the higher courts. Furthermore, I have heard stories of inmates who were transferred to poorly run prisons after they applied to the Constitutional Court or the ECtHR.

The problem here is that the Turkish Constitutional Court paved the way for such rights abuses by disregarding the fact that a prisoner’s legal battle was hampered by prison management.

The bigger problem is, however, that the ECtHR still considers the top Turkish court, which has frequently reached such judgments in recent times, to be an effective venue for appeals. In a similar vein, the ECtHR returned thousands of applications waiting on its docket due to the creation of a state of emergency (OHAL) commission to assess objections to government decrees during the two-year-long OHAL, although this governmental body’s partisan views against the victims of the decrees was obvious. Because of the OHAL commission, which proudly announced that some 28,000 applications out of 30,000 had already been rejected, and the Constitutional Court’s slow and unjust rulings, thousands of applications at the ECtHR are still pending, awaiting justice.

The European court, which has disregarded human rights abuses so as to not to pit itself against Turkey, should abandon this attitude. The ECtHR should hear their voices and immediately start to examine the cases of tens of thousands of victims, including those who lost their jobs through government decrees, those who lost their freedom by being incarcerated by the courts and those who lost their financial assets through fake evidence and biased rulings.

Is it about €20 million?

The members of the Council of Europe contribute a certain amount of money for the activities of the council, which includes the ECtHR as one of its affiliated institutions. Turkey provided around €13 million to its budget. In 2015, Turkey’s share was increased to €33 million, a decision that put Turkey among the most generous contributors to the council, along with Britain, France, Germany, Italy, and Russia.

However, Turkey’s decision to pay €20 million more to the council was canceled two years later when the council decided to give its Vaclav Havel Human Rights Prize to the former chair of the Union of Judges and Prosecutors (YARSAV), Murat Arslan, who is still in prison over Gülen links.

During a session in April, Secretary-General of the Council of Europe Thorbjorn Jagland said the council could maintain its activities only until the end of 2019 without the contributions of Turkey and Russia. No coincidence, of course, that most of the applications pending in the ECtHR are from Turkey — roughly 3,500 cases — and that second place is held by Russia with more than 2,400 cases.

In European Union countries, such promises of contribution to the council cannot be easily broken, I suppose. However, in countries like Turkey, in which one-man rule is taken for granted, this is not unusual.

Now the question should be this: Did the EU and the ECtHR ignore Turkey’s human rights abuses just for the sake of €20 million? As Turkey will not pay this money again, the ECtHR ought to return to what the laws require and stop betraying its own values. (turkishminute.com)

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