Recent Decisions
The European Court of Human Rights (the Court) delivered its judgment in the ground-breaking case of Taner Kılıç (no. 2) v. Turkey (no. 208/8) on 31 May 2022. The Turkey Human Rights Litigation Support Project, Human Rights Watch and the International Commission of Jurists submitted a joint third party intervention which concerns the pre-trial detention of Mr. Taner Kılıç, a respected human rights lawyer and former chair –(and currently honorary chair) of Amnesty International Turkey, on account of his activities as a human rights defender (HRD). In its long-awaited judgment, the Court deliberates on some of the most fundamental human rights challenges in Turkey today. These include the excessive and widely documented restrictions on freedom of expression of HRDs, the abusive resort to criminal law against legitimate activities protected under the European Convention on Human Rights (the Convention) and more particularly the arbitrary application of the anti-terrorism legislation against HRDs, with wide-reaching implications for public debate, participation in public affairs and the protection of human rights in Turkey and beyond.
In the Taner Kılıç (no. 2) v. Turkey judgment, the Court found a violation of Articles 5§1 (lack of reasonable suspicion justifying initial and continued pre-trial detention), 5§3 (failure to provide reasons for decisions concerning pre-trial detention), 5§5 (lack of compensation for unjustified pre-trial detention) and 10 (freedom of expression) of the Convention.
Firstly, the Court found there had been a violation of Article 5§1 of the Convention on account of the detention of Mr. Kılıç despite the lack of reasonable suspicion that he had committed an offence, both on the date when he was placed in pre-trial detention and after his detention was extended. Mr. Kılıç had been arrested in June 2017 on suspicion of belonging to the organisation FETÖ/PDY (an organisation described by the Turkish authorities as “Gülenist Terror Organisation/Parallel State Structure”). Two sets of criminal proceedings against him -which were later joined before an Istanbul Assize Court- accused him of being a member of multiple terrorist organisations. The putative basis was his alleged use of the ByLock messaging service and various action related to the defence of human rights. As regards to the alleged use of the ByLock messaging service, the Court referred to its conclusions in the Akgün v. Turkey case (no. 19699/18, §§ 159-185, 20 July 2021), in which it found that, in principle, the mere fact of downloading or using a means of encrypted communication or the use of any other method of safeguarding the private nature of exchanged messages could not in itself amount to evidence capable of satisfying an objective observer that illegal or criminal activity was taking place (paragraphs 106-109). With regard to the other grounds used by the domestic authorities as evidence of criminal activity, the Court noted in particular that the second set of criminal proceedings against Mr. Kılıç relied on facts which appeared to be ordinary peaceful and legal acts of a HRD (paragraphs 110-113). In conclusion, the Court considered that the evidence cited by the national judges had not met the standard of “reasonable suspicion” that was required by Article 5 of the Convention, that the interpretation and application of the legislative provisions relied on by the domestic authorities had been unreasonable, and that the applicant’s detention was therefore arbitrary (paragraphs 114-116).
Secondly, in the absence of a reasonable suspicion that the applicant had committed an offence, the Court concluded that the initial detention order against the applicant and the subsequent decisions extending his detention lacked sufficient reasoning, which constituted a violation of Article 5§3 (paragraphs 117-120). Moreover, it held that there had been a violation of Article 5§5 on the ground that the Turkish law did not provide an enforceable right to compensation with respect to the unlawful detention.
Thirdly, in its assessment under Article 10, which reflected the third party intervention by the NGOs, the Court recalled the importance of the protection and the role of HRDs for the development and realisation of democracy and human rights (paragraph 145). It considered that the principles developed by the Court regarding the detention of journalists and media professionals could be applied mutatis mutandis to HRDs, where the pre-trial detention had been imposed in the context of criminal proceedings brought against them for conduct directly linked to human rights protection (paragraph 147). As Mr. Kılıç’s continued pre-trial detention was based on, among other things, evidence directly related to his activities as a HRD, the Court held that it amounted to an “interference” in the exercise of his right to freedom of expression (paragraphs 149-151).
The Court noted that under Article 100 of the Turkish Code of Criminal Procedure, a person could only be placed in pre-trial detention where the facts give rise to a strong suspicion that they had committed an offence. In this connection, the lack of reasonable suspicion referred to above should, a fortiori, have implied the absence of strong suspicions when the national authorities were invited to review the lawfulness of the detention. In consequence, the Court found the interference in the exercise of his right to freedom of expression, was not prescribed by law and violated Article 10 of the Convention (paragraphs 153-158).
Lastly, although the Court found serious violations under Articles 5 and 10 of the Convention, developing its caselaw on the protection of the rights and freedoms of HRDs, it held that there was no need to examine the applicant’s complaints under Article 18. The Court considered that under Article 10 it had taken sufficient account of the applicant’s position as leader of an NGO and a HRD (paragraph 159). However, in their partly dissenting opinion Judges Küris and Koskelo stated that the Court, under Article 18, should have examined whether the Turkish authorities had pursued a “hidden agenda” resulting in violations of Articles 5 and 10 of the Convention. Referring to their previous partly dissenting opinions in the cases of İlker Deniz Yücel v. Turkey (no 27684/17, 25 January 2022), Sabuncu and Others v. Turkey no 23199/17, 10 November 2020) and Ahmet Hüsrev Altan v. Turkey (no 13252/17, 13 April 2021), the dissenting judges underlined that the Court should take into account, among relevant factors, the large number of cases brought against Turkey in which Article 18 complaints were raised in circumstances similar to those in the present case.
It is a matter of regret that the majority of the Court did not adequately take into account that the applicants’ detention and prosecution was part of a broader pattern of repression against media, civil society and opposition politicians in the aftermath of the attempted coup in Turkey (see also here )despite this, the Taner Kılıç (no. 2) v. Turkey judgment is undoubtedly significant, by condemning unequivocally the Turkish authorities arbitrary use of criminal law against a high profile HRD on spurious grounds related to his human rights activities. In this judgment, the Court also showed that it will apply strict scrutiny under Article 10 for any interference with the exercise of HRDs’ right to freedom of expression, applying mutatis mutandis principles developed regarding the detention of journalists and media professionals. Considering the widespread nature of ongoing criminal proceedings against HRDs in Turkey, this judgment represents a serious warning for the Turkish authorities.
Lastly, the judgment is also relevant to on-going proceedings against Mr. Kılıç himself. He was convicted by the Istanbul Assize Court relying on the same grounds which the Court found insufficient to justify his pre-trial, confirmed on appeal, and the case is currently pending before the Court of Cassation. The Court’s finding concerning the lack of “reasonable suspicion” justifying his pre-trial detention, underscore the imperative of Mr. Kılıç’s acquittal by the domestic courts.
(Read this analysis in PDF here)
The European Court of Human Rights (The Court or the ECtHR), recently delivered two judgments in the cases of Sabuncu and Others v. Turkey (application no. 23199/17) and Şık v. Turkey (no. 2) (application no. 36493/17), respectively on 10 November 2020 and 24 November 2020. The cases concerned the initial and continued pre-trial detention of the journalists of the Turkish daily newspaper Cumhuriyet. While the Court found a violation of Articles 5 § 1 (right to liberty and security) and 10 (freedom of expression) of the Convention in both cases, it held that there had not been no violation of Articles 5 § 4 (right to speedy review of the lawfulness of detention) and 18 (limitation on use of the restrictions on rights) of the Convention. These two cases are blatant examples of media repression in Turkey in the aftermath of the attempted coup of 15 July 2016. See here for a detailed analysis of the judgments.
On 10 December 2019, the European Court of Human Rights (ECtHR) marked Human Rights Day by issuing a judgment of great potential significance in the case of Osman Kavala, a prominent human rights activist who has been detained for his alleged role in the 2013 Gezi Park Protests and the July 2016 coup attempt. In Kavala v Turkey, the Court found violations of Article 5(1) of the European Convention on Human Rights (Convention) on the lack of reasonable suspicion that the applicant had committed an offence; Article 5(4) of the Convention on the lack of a speedy judicial review on arbitrary detention; and Article 18 of the Convention, on the prohibition of restrictions of rights for unauthorised purposes, in conjunction with Article 5(1).
Both the timing and the content of the judgment are significant. Delivered in the weeks before the Turkish court is due to hear Mr Kavala’s criminal case, on 24-25 December 2019, the decision sends a very strong message to the Turkish judiciary. Moreover, the case is emblematic of broader current trends in Turkey and has raised human rights issues of significance to hundreds of other cases underway before the Turkish courts. As a joint third-party intervention before the ECtHR, submitted by the TLSP and PEN International, made clear, these issues include the human rights implications of closing civil society space in Turkey and the repression of human rights defenders including through excessive resort to criminal law.
The applicant Osman Kavala was arrested in Istanbul in October 2017 on the alleged suspicion of attempting to abolish constitutional order (Article 309 of the Criminal Code) and overthrow the government (Article 312 of the Criminal Code). The charges relate to his alleged involvement in the 2013 Gezi Park Protests. The protests, which began as a challenge to government plans to destroy Gezi Park in İstanbul and create a shopping centre later triggered a wave of demonstrations against restrictive government policies across Turkey, and were characterised by the prosecutor as a “riot to overthrow the government” and “supported by many terrorists.” On 1 November 2017, Mr Kavala was brought before the 1st Magistrate’s Court (Criminal Peace Judgeship) in Istanbul, where he denied the charges and highlighted that he had been campaigning for peace and for the defence of human rights. At the end of this hearing, Mr Kavala was placed in detention on the grounds that there was evidence to suggest he had organised the Gezi Park Protests and had contacts with the alleged organizers of the July 2016 coup attempt.
On 29 December 2017, Mr Kavala lodged an individual application with the Constitutional Court claiming violation of, inter alia, Article 19 of the Constitution, corresponding to the rights guaranteed under the Convention. In a controversial majority decision, discussed in detail by TLSP here, the Constitutional Court endorsed the prosecutor’s perception that the Gezi Park Protests had been violent and aimed at overthrowing the government, and that the applicant had taken part in and financed activities and meetings contributing to this aim. Five dissenting judges challenged the majority on the grounds that there was in fact no evidence substantiating links between the applicant’s conduct and the violent incidents highlighted by the authorities. The majority however decided that the applicant’s pre-trial detention was lawful based on a reasonable suspicion and was proportionate given the difficulties in investigating terrorism related offences.
In his case before the ECtHR, Mr Kavala relied on Articles 5(1)(c) and 5(3) of the Convention to challenge the lawfulness of his initial and continued pre-trial detention. He argued that the lack of evidence of any plausible grounds for suspecting him of criminal activity rendered the detention unlawful. The ECtHR agreed, finding “in the absence of facts information or evidence showing he had been involved in criminal activity – that the applicant could not be reasonably suspected of having committed the offence of attempting to overthrow the Government.” The Court reached the same conclusion in relation to Mr Kavala’s alleged involvement in the attempted coup (para 153).
The Court’s willingness to consider the facts and evidence and find that it provided no reasonable basis for suspicion, or detention, was significant. But in a passage that provokes particular interest in light of Mr Kavala’s impending trial, the ECtHR went further, making clear that the impugned conduct could not reasonably be seen to constitute a crime at all, but rather legitimate human rights related activity. It noted that the applicant’s continued pre-trial detention was “based not only on facts that cannot be reasonably considered as behaviour criminalised under domestic law, but also on facts which were largely related to the exercise of Convention rights. The very fact that such acts were included in the bill of indictment as the constituent elements of an offence in itself diminishes the reasonableness of the suspicions in question” (para 157).
The Court found a lack of speedy judicial review governing detention under Article 5(4) of the Convention. Mr Kavala argued that several factors (including lack of access to the case file and non-compliance with the principles of equality of arms amongst others) had prevented him from being able to effectively challenge his detention, and that the proceedings before the Constitutional Court did not respect the requirement of speedy judicial review. Again, the ECtHR agreed, finding that given what was at stake for the applicant, the total duration of over 16 months of the Constitutional Court’s review could not be considered compatible with the “speediness” requirement of Article 5(4) (para 185). Of special note, with important implications for future cases, is the Court’s observation that “the excessive workload of the Constitutional Court cannot be used as perpetual justification for excessively long procedures […] It is for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of Article 5(4) of the Convention” (para 188).
Lastly, the applicant submitted that his detention was in breach of Article 18 of the Convention as it was imposed for a purpose other than that envisaged by Article 5, namely to silence him as an NGO activist and human rights defender, to dissuade others from engaging in such activities and to paralyse civil society in the country. Reflecting our third-party intervention, the Court found that following the attempted coup, the government had misused “legitimate concerns in order to redouble its already significant crackdown on human rights, inter alia, by placing dissenters in pre-trial detention.” (para 214). In a significant finding, the second such finding against Turkey following its previous judgment in Selahattin Demirtaş v Turkey (No. 2), the Court held that applicant’s initial and continued detention pursued an ulterior purpose, namely to reduce him to silence as a human rights defender.
In support of its finding on Article 18, the ECtHR highlighted the fact that during police interviews, Mr Kavala was asked many questions which had no connection with the charges. This included questions about his meetings with representatives of foreign countries, his telephone conversations with academics, journalists, NGO representatives and the visit of an EU delegation – none of which appeared to be relevant to assessing the “reasonableness” of the suspicion underlying the charges. The Court noted that many of these are the “ordinary and legitimate activities on the part of a human rights defender and the leader of an NGO” (para 223).
In an indictment of the Turkish prosecution, the judgment found that “the inclusion of these elements undermines the prosecution’s credibility. In addition, the prosecution’s attitude could be considered such as to confirm the applicant’s assertion that the measures taken against him pursued an ulterior purpose, namely to reduce him to silence as an NGO activist and human-rights defender, to dissuade other persons from engaging is such activities and to paralyse civil society in the country” (para 224).
In addition, the Court found the time-frame of the case to be relevant to an assessment of Article 18 of the Convention, specifically the fact that the applicant was arrested more than four years after the Gezi Park Protests and more than a year after the attempted coup (para 226).
Lastly, the Court noted that the charges were brought against the applicant in February 2019, over a year after his initial detention of November 2017, and following speeches given by the President of the Republic. The Court made references to two specific speeches the President gave in November and December 2018, in which he spoke about the financing of the Gezi Park events and openly cited the applicant’s name: “I have already disclosed the names of those behind Gezi. I said that its external pillar was G.S., and the national pillar was Kavala.” The Court held it could not overlook the fact that “when these two speeches were given, the applicant who had been held in pre-trial detention for more than a year, had still not been officially charged by the prosecutor’s office. In addition, it can only be noted that there is a correlation between, on the one hand, the accusations made openly against the applicant in these two public speeches and, on the other, the wording of the charges in the bill of indictment, filed about three months after the speeches in question” (para 229).
Taking into account these elements, and the consideration that Mr Kavala’s detention was “part of a wider campaign of the repression of human rights defenders in Turkey,” which was endorsed by third-party interveners, the Court found a violation of Article 18 and noted its wider chilling effect on the rest of civil society (para 230). Based on its findings summarised above, the Court invited Turkey to take all necessary measures to end violations and secure Mr Kavala’s “immediate release.”
The judgment of the ECtHR is significant in several respects. It is the first case the ECtHR has concluded in relation to the worrying trend of arbitrary use of criminal law against human rights defenders in the country following the coup attempt. The rare findings of Articles 5(1) and, particularly, Article 18 violations, and the strident criticism the Court directed to the investigating authorities and the executive, are noteworthy. It is also the first time that the ECtHR found that the Constitutional Court’s ability to provide a speedy remedy to those challenging their pre-trial detentions, in this case, fell short of the Convention standards, which it had alluded to in its rulings on Mehmet Hasan Altan v Turkey (para 166) and Şahin Alpay v Turkey (para 138). The Court’s unequivocal indication that Mr Kavala must now be released without delay presents a clear test for the Turkish state. As of 19 December 2019, Osman Kavala was still in detention without any indication on his release.
On 16 April 2018 the Court issued its judgment in the case of Altan v Turkey. During and after the coup attempt, the Ankara public prosecutor’s office opened a criminal investigation in which some 3,000 judges and prosecutors were taken into police custody and placed in pre-trial detention. Mr Alparslan, a former member of the Turkish Constitutional Court, was detained on 19 July 2016 in connection with this investigation and remains in custody. Mr Alparslan was suspected of seeking to overthrow the constitutional order under Article 309 of the Turkish Criminal Code, and being a member of the FETO/PDY group (a designated terrorist organization under Article 314 of the Turkish Criminal Code) claimed to be behind the 15 July 2019 coup attempt. He was dismissed from the Constitutional Court following a plenary session held by the court on 4 August 2016. Mr Alparslan applied to the European Court of Human Rights (ECtHR) challenging his pre-trial detention, and the Court delivered its judgement in this case on 16 April 2019.
Prior to applying to the ECtHR, Mr Alparslan lodged an individual application with the Constitutional Court – complaining of both arbitrary detention and a lack of specific evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating his pre-trial detention. In addition, he maintained that the domestic courts had not given sufficient reasons for ordering his detention, that the magistrates who ordered his pre-trial detention were not independent and impartial, and that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment. Lastly, he argued that the process of his dismissal had infringed his rights to a fair trial, to respect for his private life and home, to freedom of expression, and constituted discrimination.
With regard to the lawfulness of his detention and his dismissal, the Constitutional Court held on 11 January 2018 that he had failed to bring an appropriate compensation claim under Article 141(1) of the Turkish Code of Criminal Procedure (CCP) and had therefore not exhausted all remedies. All remaining complaints were held to be manifestly ill founded.
Before the ECtHR, the applicant complained that he had been arbitrarily placed in pre-trial detention, and argued there had been no specific evidence giving rise to a reasonable suspicion that he had committed a criminal offence necessitating pre-trial detention. In particular, he maintained that the domestic courts had given insufficient reasons for the decisions ordering his detention. The ECtHR examined the complaints under Article 5(1) and 5(3) of the Convention – finding Turkey to be in violation of 5(1)(c).
In its evaluation, the Court paid special attention to Mr Alparslan’s position as a member of the Constitutional Court, emphasizing the “special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a State governed by the rule of law, must enjoy public confidence if it is to be successful in carrying out its duties” (para. 102). The Court noted that they must be “particularly attentive to the protection of members of the judiciary when reviewing the manner in which a detention order was implemented from the standpoint of the provisions of the Convention.” The Court went on to highlight the importance of the general principle of legal certainty and the requirement that any law outlining conditions for deprivation of liberty should be clearly defined, foreseeable in its application, so that it meets the standard of lawfulness.
The ECtHR found that the Constitutional Court’s interpretation of Article 100 of the CCP, which formed the legal basis of the applicant’s pre-trial detention, to be both in breach of the principle of legal certainty and manifestly unreasonable. The Court found that the national courts’ extension of the scope of the concept of in flagrente delicto and its application in the present case did not take place in accordance with a procedure prescribed by law as required by Article 5(1) of the Convention. A leading judgement adopted in October 2017 by the Court of Cassation in Turkey had held that at the time of the arrest of judges suspected of the offence of membership of an armed organisation, there was a situation of discovery in flagrente delicto – warranting pre-trial detention.
In the Court’s view, “this amount[ed] to an extensive interpretation of the concept of discovery in flagrante delicto, expanding the scope of that concept so that judges suspected of belonging to a criminal association are deprived of the judicial protection afforded by Turkish law to members of the judiciary […] negat[ing] the procedural safeguards which members of the judiciary are afforded in order to protect them from interference by the executive.” Moreover, the Court held that this extensive interpretation could not be regarded as an appropriate response to a state of emergency. Such an approach (which was not adopted in response to the exigencies of the situation as required under Article 15 of the Convention) was found not only to be problematic in terms of legal certainty, but also negates procedural safeguards affording judges independence from the executive, and has “legal consequences reaching far beyond the legal framework of the state of emergency” which could in no way be justified.
Regarding the alleged lack of reasonable suspicion that the applicant committed an offence, a safeguard guaranteed by Article 5(1)(c) of the Convention, the Court noted that the items of evidence used to justify the applicants continued detention were gathered long after his pre-trial detention. Given that the case in question concerned his pre-trial detention, it was found that they need not examine the items of evidence to determine whether the suspicion grounding the order for his detention was “reasonable.” Although the subsequent gathering of evidence in relation to the charge against the applicant could have reinforced a suspicion linking him to the commission of terrorist-type offences, it could not have formed the sole basis of a suspicion justifying his initial detention. The Court went on to find that “[t]he detention order was based on a mere suspicion of membership of a criminal organisation. Such a degree of suspicion cannot be sufficient to justify an order for a person’s detention.”
As regards the notion of “reasonableness” of the suspicion on which the arrest or detention had to be based during the state of emergency, the Court observed that the difficulties facing Turkey in the aftermath of the attempted military coup were undoubtedly a contextual factor which had to be taken into account when interpreting and applying Article 5 of the Convention in the present case. This did not mean, however, that the authorities had carte blanche under Article 5 to order an individual’s detention during the state of emergency without any verifiable evidence or information, or without a sufficient factual basis satisfying the minimum requirements of Article 5 § 1 (c) regarding the reasonableness of a suspicion. After all, the “reasonableness” of the suspicion on which deprivation of liberty had to be based formed an essential part of the safeguard laid down in Article 5 § 1 (c).
The judgment is an important one, highlighting key issues concerning the importance of maintaining procedural safeguards– even in the context of a state of emergency. It is the first decision concerning the pre-trial detention of a judge following the coup attempt, and has the potential to set precedent for other cases concerning the ongoing detention of a number of judges and prosecutors.
On 29 January 2019, the ECtHR adopted two inadmissibility decisions in the cases of Elçi v. Turkey and Ahmet Tunç and Others v. Turkey concerning the alleged human rights violations that occurred during curfews and counter-terrorism operations in South-Eastern Turkey. The curfew cases as a whole address violations of the right to life, arbitrary detention, impact on private and family life, the associated impunity of the security forces and lack of effective remedies for victims in Turkish courts. The applicants in the Ahmet Tunç and Others case, for example, were shot by security forces, denied access to medical care and left to die in an area under curfew, despite an interim measures order in their favour delivered by the ECtHR. Despite the grave allegations of unlawful conduct by security forces, and complaints about the passiveness of the judicial authorities in response to those allegations, the Court found that no special circumstances had been established to exempt the applicants from the requirement to exhaust domestic remedies - in this case the Constitutional Court.
The ECtHR handed down its judgment in Selahattin Demirtaş v. Turkey (No.2) on 20 November 2018. The Court found that the detention of Selahattin Demirtaş, the former co-chair of HDP (a pro-Kurdish political party) and two times presidential candidate, constituted a violation of his rights protected under Article 5(3) and Article 3 of Protocol 1 of the Convention. The Court held that the continued detention of the applicant lacked a sufficient legal basis and “pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate” and was therefore in violation of Article 18 of the Convention (limitation on use of restrictions on rights) in conjunction with Article 5(3) (the right to be brought promptly before a judge).
The case concerned the detention of journalist Sahin Alpay. In a judgement handed down on 20 March 2018, the Court found that there had been a violation of Article 5(1) (right to liberty and security), and a violation of Article 10 (freedom of expression). However, no violation of Article 5(4) (right to a speedy review of the lawfulness of detention) was found. While the Court emphasised the fact that the continued use of pre-trial detention, despite the Turkish Constitutional Court’s ruling against such a measure, raised doubts as to the effectiveness of the remedy, it would not depart from the previous finding in Kocintar v Turkey (para. 44) that the right to appeal to the Constitutional Court constituted an effective remedy for those deprived of their liberty.
The case concerned the detention of professor and journalist Mehmet Altan. In a judgment handed down on 20 March 2018, the Court held that there had been a violation of Article 5(1) (right to liberty and security), and a violation of Article 10 (freedom of expression). No violation of Article 5(4) (right to a speedy review of the lawfulness of detention) was found. While the court emphasised the fact that the continued use of pre-trial detention despite the Turkish Constitutional Court’s ruling against the measure raised doubts as to the effectiveness of the remedy, it would not depart from the previous finding in Kocintar v Turkey (para. 44) that the right to appeal to the Constitutional Court constituted an effective remedy for those deprived of their liberty. Concerning the alleged lack of speedy judicial review of the applicant’s continued detention (14 months and three days) by the Turkish Constitutional Court, the Court held that the case was exceptional in light of the Constitutional Court’s current caseload. On the grounds of failure to exhaust domestic remedies, the Court rejected the complaint with regard to the lawfulness of detention in police custody.
The case concerns Mr Köksal’s dismissal by legislative decree. On the 6 June 2017, the Court dismissed the application for failure to exhaust domestic remedies, finding that Mr Köksal had to use the remedy provided for under Legislative Decree no. 685. i.e. a newly established Commission tasked with adjudicating appeals against measures adopted directly by Legislative Decrees issued in the context of the state of emergency (including the dismissals of civil servants). The Court found that the line of domestic remedies has to be exhausted before introducing an application to the ECtHR. Decisions of the Commission can be appealed before the administrative courts, and subsequently before the Constitutional Court by individual petition. When that highest court had examined a case and given judgment, then an individual could submit a complaint under the European Court of Human Rights.
The applicant was dismissed from his post in accordance with the legislative decrees passed following the attempted coup. The applicant applied straight to the ECtHR and did not seek any domestic remedies on the grounds that the avenues available were not effective. Firstly, he argued that he could not appeal the measures taken under the legislative decree in the context of the state of emergency, and secondly, that the Constitutional Court is not capable of reaching an impartial decision given that several of its members had been arrested and detained. In a judgement delivered on 7 March 2017, the Court rejected these arguments holding that the Supreme Administrative Court and the possibility of individual appeal to the Constitutional Court – were not “obviously futile” avenues of redress.
The case concerns the dismissal of a judge by the Supreme Council of Judges in accordance with a legislative decree adopted during the state of emergency. In a judgement handed down on 29 November 2016, the Court rejected the application on the grounds that she had not exhausted domestic remedies which became available at the time of the decision of the Court. Namely, the new remedy (in Legislative Decree no. 685 adopted in January 2017) allowing for judges and prosecutors to challenge their dismissal before the Supreme Administrative Court. The decision of this body in turn can be challenged via individual application to the Constitutional Court, “putting an end to the dispute as to whether the domestic courts had jurisdiction to judicially review the measures taken by the Supreme Council of Judges.” The Court also held however, that this conclusion did not “in any way prejudice a possible re-examination of the question of the effectiveness of the remedy in question.”
Recent Communicated Cases
On 8 January 2019, the European Court of Human Rights communicated the case of Hüseyin Uzun v Turkey with the Turkish Government. The applicant, Mr Uzun, challenges Emergency Legislative Decree No. 677 on the grounds that it violated his right to education protected by Article 2 of Protocol 1 of the Convention. On 2 August 2016, the applicant Mr Uzun, was placed in pre-trial detention in Burdur Prison on suspicion of being a member of the FETÖ / PDY organisation. At the time, Mr Uzun was enrolled in a training program at the Anadolu University of the Faculty of Public Administration. On 23 November 2016, the prison administration sent Mr Uzun a copy of decree law no. 677 notifying him that he could not, under Article 4 of the Decree, participate in exams for the duration of the state emergency, and the entire duration of his detention. On 22 December 2016 the applicant lodged an individual petition before the Constitutional Court, alleging that the ban introduced by the emergency decree law violated his right to education. Mr Uzun’s appeal was dismissed as manifestly ill-founded by the Constitutional Court on 18 June 2018. The Court held that the refusal to allow the applicant to sit his exam was based on an emergency law pursuing a legitimate aim, namely to ensure the discipline and security within the prison establishment. The Court indicated that as a result of the attempted coup, many persons accused of terrorist offences had been detained and/or convicted on similar charges, and therefore the number of officers responsible for the safety and protection of detainees had decreased significantly. In light of these elements and the Court’s previous decision in Mehmet Ali Eneze, it could not be said that the restriction on the applicants right to education was not necessary to achieve a legitimate aim. This case is important as it is one of the first to evaluate interference with the right to education during a state of emergency.
On 5 March 2019, the European Court of Human Rights communicated the case of Kerestecioglu Demir v. Turkey with the Turkish Government. The applicant, Ms Kerestecioglu, challenges the waiver of her parliamentary immunity through a constitutional amendment procedure allowing a prosecutor to pursue a criminal investigation against her on account of her participation in a peaceful public assembly as a Parliamentarian. The applicant alleges that she is being prosecuted due to her political views as an opposition politician, amounting to a violation of her right to freedom of opinion and expression protected under Article 10 of the Convention.On 1 November 2015 the applicant was elected as a deputy and since then she has been carrying out her role as parliamentarian in the National Assembly. A prosecutor filed an investigation report against the applicant for her attendance at a public assembly, which was transmitted to the Parliament for the waiver of her immunity. On 20 May 2016 the National Assembly passed a constitutional amendment by inserting a provisional Article in the 1982 Constitution. Pursuant to the amendment, parliamentary immunity was lifted in all cases where requests for waivers of immunity had been transmitted to the National Assembly before the date of its adoption. This case is important as it is one of the first to evaluate the stripping of parliamentary immunity of an MP and potential repercussions of a criminal prosecution on the freedom of expression and political activities of an opposition politician.
