- Lisa Reppell – Turkish Review – Jan 2015 – The Turkish public is no stranger to the rulings of the European Court of Human Rights. At regular intervals, the Strasbourg court hands down a judgment sufficiently salient in the domestic political context to make headlines and spark analysis from social commentators and political actors. But what do these judgments reveal about the health of Turkey’s justice system when they are looked at as part of a continuous narrative instead of episodically
- As isolated events condensed into headlines, the judgments handed down by the court can seem to shine a spotlight on Turkey’s most sensitive societal cleavages — the legitimacy of Turkey’s intervention in Cyprus, the rights of religious minorities and the repercussions of decades of violence in the Kurdish southeast to name only a few. Tracking the progression of Turkey’s relationship with the European Court of Human Rights (ECtHR) is also a means for tracking the development of human rights norms in the country. Institutions and perceptions in Turkey have altered to accommodate an evolving relationship with the Strasbourg court. The most recent and significant alteration is a 2012 shift towards increased domestic responsibility for human rights rulings by the Turkish Constitutional Court (TCC). This report will briefly sketch Turkey’s history with the ECtHR before examining the implications of Turkey’s record at the court and detailing their compliance efforts. The final section will examine the still-unfolding implications of the 2012 change that enabled the TCC to rule on individual human rights applications, looking at how this change has significantly altered the court’s role in the Turkish political landscape and the scope of human rights rulings in Turkey.
Changing laws, shifting perceptions
As a founding member of the Council of Europe, Turkey was an early signatory of the European Convention on Human Rights (ECHR), the document by which the ECtHR defines its scope of adjudication. The beginning of Turkey’s contemporary relationship with the court can be traced to Ankara’s decision to accept the right of individuals to bring their human rights complaints directly to the ECtHR in 1987. In 1990, Turkey publically committed itself to the binding jurisdiction of the Strasbourg court.
The earliest rulings of the ECtHR touched directly upon some of the most sensitive issues in the Turkish political landscape. In Loizidou v. Turkey, the court ruled in favor of a Cypriot national demanding access to her property in northern Cyprus. Beginning in 1996, a flood of cases brought by Kurdish applicants alleging grave mistreatment at the hands of Turkish security forces caused the court to take the unprecedented step of setting up its own fact-finding hearings in southeast Turkey.
These rulings were pivotal in shaping early conceptions of the court. As Prof. Başak Çalı writes in her detailed exploration of the cases coming from southeast Turkey between 1996 and 2006, the court’s decision to accept direct petitions from the southeast “caused alienation between the Turkish government and the ECtHR […] Turkish authorities regarded the decision of the ECtHR to allow applications without exhausting domestic remedies equal to finding the Turkish state guilty without trial.”1 Early on, when litigation in the Kurdish cases started, “there was a perception among more nationalist groups that the ECtHR was a court for the Kurds, for the [outlawed Kurdistan Worker’s Party] PKK” said Çalı in a phone interview with Turkish Review.2 The state was repeatedly uncooperative in providing evidence and witnesses for the court’s investigations in the Southeast and resisted paying reparations in the Loizidou case for almost a decade.
The rocky start of the Turkish state’s relationship with the ECtHR is worth highlighting because it provides a comparison point for the ways in which the attitude towards the court changed in the following decades. The commencement of the EU accession process brought great strides in bringing the country’s legal code into line with human rights criteria. Beginning in 1999 under the coalition government at the time and gaining momentum under the Justice and Development Party (AK Party) government, Turkey’s leaders undertook a series of comprehensive legislative and constitutional reforms. In 2004, Article 90 of the Constitution was amended to give precedence to international human rights treaties over national laws, giving authority to ECtHR case law over Turkish domestic rulings.
When the Loizidou case was finally settled in 2003, a statement from the Foreign Ministry declared, “Although we see the decision as unjust and wrong, fulfilling the decision means fulfilling the joint responsibility we have to protect the respectability of the European Court of Human Rights.”3 Turkey thus publically demonstrated a willingness to defer to the authority of ECtHR even in an instance where it declared itself in open disagreement with the court’s ruling.
As Turkey’s institutional and legal framework moved toward alignment with EU standards, perceptions of the Strasbourg court also began to shift. “When you look at it over time, every single sort of political group from Turkey has litigated before Strasbourg,” said Çalı; “Clearly it is a place that all political actors have accepted as part of the landscape.”4
Principle and practice
This narrative of harmonization is quickly complicated when it is juxtaposed against cumulative statistics of the court’s history with Turkey. From 1959 to the present, over 3,000 judgments concerning Turkey have been handed down by the court, more than any other member state (Figure 1). In only 2 percent of those 3,000 judgments was no violation of the ECHR found. The large number of cases filed against Turkey indicates that the full incorporation of human rights into the country’s practices and policies is not complete.
The numbers do show which areas of law are most often subject to human rights objections. “[T]he Strasbourg court operates as a ‘barometer’ which can help to identify emerging and continuous problems in law, policies and practices through repeated cases,” Çalı wrote in 2012. While rulings on politically sensitive topics are more likely to garner media attention, the numbers show where the most repeated violations occur, not merely the most sensational. Article 6 violations, which include the right to a fair and timely trial, are consistently an area of complaint, though Turkey is not alone in this; across all member states cumulatively, Article 6 judgments are the most frequent violations (Figure 2).
A cumulative look at cases also provides grounds for comparison internationally and shows where Turkey’s human rights violations outpace other member states. The category in which Turkey stands out most significantly is freedom of expression. Though by number of incidences, freedom of expression judgments are a smaller percentage of Turkey’s judgments, violations of this category are much more common in Turkey than in any other member state. Out of a total of 544 judgments handed down by the Court between 1959 and 2013, 41 percent of all freedom of expression violations have come from cases against Turkey.
Turkey’s compliance record
According to the database of the Committee of Ministers, the body charged with overseeing member states’ compliance with ECtHR judgments, Turkey has more than 1,500 cases waiting to be fully implemented. While there is undoubted a delay in compliance, Turkey’s record on speed of implementation is not uniquely bad among member states.
In e-mailed comments to the Turkish Review, the Council of Europe Commissioner for Human Rights Nils Muižnieks said, “The Turkish authorities have indicated that they value highly their co-operation with the Council of Europe and that they are fully committed to respecting the judgments of the ECtHR,” adding that he “strongly welcomed the adoption of a human rights action plan by the Turkish government last year, which addresses shortcomings in the execution of ECtHR judgments.”6
Prof. Çalı, who has done extensive fieldwork in addition to her prolific publications on the court, told Turkish Review that, “Turkey is definitely not known as a state that [refuses to comply] before the Committee of Ministers.” In addressing their record, Turkish officials are known to stand behind the efforts they are making and “positively show that they are striving to do something.”7 Examples of this desire to demonstrate progress towards compliance with the ECHR and ECtHR’s judgments are clearly visible in the semi-annual progress reports of the Reform Monitoring Group, released by Turkey’s Ministry for EU Affairs.8 Compliance with court judgments in the form of payment of settlements or legislative policy changes are undertaken at the discretion of the government. The Committee of Ministers can keep an unresolved judgment on a member state’s agenda through diplomatic reminders, but lacks binding enforcement measures. It is, however, a useful watchdog for states who wish to comply with judgments. Not all judgments are highly political and compliance in these instances may line up with a government’s priorities.
Though there is a delay in Turkey’s resolution of cases, over the past decade it has moved steadily toward resolving judgments in accordance with the court’s rulings. The same pace of compliance appears to be continuing, with the number of resolutions executed over the past year keeping pace with the 10-year average.9 Because of the slow nature of the resolution process, the significance of this observation is bounded, but the numbers do not appear to indicate a slowdown in compliance. As the Turkish government has come under increasing criticism for stalling on a variety of democratic indicators in recent years, compliance on ECtHR judgments is an additional indicator worth observing.
In addition to the story told by the numbers, the compliance process also has salience in the domestic political context. Some rulings of the court are relatively apolitical and are able to be implemented without significant comment. However, rulings that do touch on sensitive issue areas can show up on the domestic political agenda in a way that reveals broader government attitudes towards the court. One limited example of how attitudes towards compliance shift over time can be seen in the official reaction to two very similar rulings on the right of Turkish citizens of the Alevi faith to be exempt from mandatory religion and ethics classes. In 2007, in reaction to the ECtHR’s ruling that compulsory religious courses founded on a Sunni Islamic understanding violated Alevi students’ rights, the minister of religious affairs at the time for the AK Party government, Said Yazıcıoğlu, said, “It is possible to exempt those who wish to be exempted while sticking with compulsory education.” He continued, “Some difficulties arise regarding the content from time to time. We already said that the content should be reviewed if there were elements inappropriate to the class’s aim. This is not a new situation.”10
In September 2014, with the same party in power, a very similar ruling on Alevis’ right to exemption from compulsory religious education was handed down by the ECtHR. The ruling prompted President Recep Tayyip Erdoğan to state: “This is an incorrect decision. It has no precedent in the West. […] If compulsory courses on religion are challenged, why do they complain about drugs or terrorism?”11 Turkey then appealed the judgment to the ECtHR. In seven years, the official party line regarding compliance on this issue shifted from dismissive acceptance to strong protest.
Wide-reaching conclusions cannot be drawn from this single example. However, the striking nature of this rhetorical turnaround does suggest that a more exhaustive look at rhetorical shifts could prove interesting. Are these isolated incidents or part of an emerging trend on Turkey’s attitude towards compliance?
From Strasbourg to Ankara
One statistic in Turkey’s relationship with the ECtHR changed dramatically in 2013. After years of steady increase, the number of cases filed against Turkey at the ECtHR dropped by more than half, from just shy of 9,000 cases in 2012 to 3,500 cases in 2013. In one year, Turkey dropped from the member state with the second-highest number of cases filed against it to the fifth-highest.
The cause of this sharp decline is clear, and marks one of the most significant alterations in Turkey’s relationship with the ECtHR; in September 2012, the TCC began directly accepting individual applications on human rights violations, petitions that prior to this change would have been destined for the Strasbourg court. The change was authorized by a constitutional amendment adopted on Sept. 10, 2010.
The implementation of this change “transform[ed] the court from an abstract judicial review institution to a rights adjudicator.”12 It gave the TCC the power to rule on a limited number of rights granted under the Turkish Constitution and made it necessary for the Turkish court to closely adhere to ECtHR case law. “The combination of the need to cultivate a Strasbourg-compliant reputation and repetitive cases allowing for no wiggle room for interpretation increased the cost of ignoring international law for the Turkish Constitutional Court in such a short span of time.” ECtHR case-law’s relevancy was immediately magnified: if a case was rejected in Ankara in a way that clearly diverged from ECtHR precedent, the ruling would be overturned quickly if then taken to the ECtHR.13
As this new system was put into place, direct applications to the ECtHR were “effectively closed.”14 The ECtHR reinforced this in its inadmissibility decision in the case of Uzun v. Turkey in April of 2013; the Strasbourg court ruled that because the TCC provided an avenue for the protection of human rights at a domestic level, this option must be exhausted before the case could be heard by the ECtHR.
Looking back at the TCC’s record in its new role almost two years after it began accepting individual petitions, ECtHR President Spielmann commended the new system, saying: “By strengthening the system of constitutional remedies, Turkey created the conditions to repatriate thousands of cases pending at Strasbourg. More importantly, it opened to these applicants the possibility of stronger, more effective remedies than are available from the European Court. The Constitutional Court enjoys a broad panoply of judicial powers, to the benefit of those who seek its intervention.”15
Commissioner for Human Rights Muižnieks told Turkish Review: “I have been very happy so far with the way in which the Constitutional Court handled a number of individual applications, showing both a high degree of awareness of the case-law of the European Court of Human Rights and a willingness to align itself with it. I believe that the Constitutional Court managed to establish itself in the eyes of the Turkish public as a strong beacon of protection of human rights — it is crucial that this achievement be sustained over time.”16
Though there is great optimism surrounding the enhanced role of the TCC, the efficacy of the new system is still being tested. A number of initial fears accompanied the transition to the new system. A chief logistical concern is that the caseload will grow to be unmanageable. In total, approximately 32,000 cases have been filed with the TCC and 16,000 of them have been finalized as of January 2015. As in the case of the ECtHR, the most common grievances of applicants to the TCC are the length of pre-trail detention and the right to a fair trial. As application numbers spike, the court’s ability to address complaints about the right to a timely trial in a manner that is actually timely could be in jeopardy.
The ability to handle this rising caseload is contingent upon the culture of human rights judgments coming to characterize the entirety of the Turkish judicial system. “The success or failure of the reform,” former TCC head Haşim Kılıç is quoted as saying, “would depend on the ability of lower courts and lawyers to carry out procedure in accordance with the [ECtHR].”17 Turkey’s lower courts have a mixed record on implementing ECtHR case law, despite the amendment of Article 90 of the Turkish Constitution, which gives precedence to international jurisprudence. The result is a patchwork of legal precedents. Despite the TCC’s new powers, it is unclear whether or not it will have the ability to drive the entirety to the Turkish judiciary towards adoption and application of ECtHR case law and thus stop repetitive violations from appearing at its doorstep.
A group of international and Turkish consultants evaluating the implementation of the individual application system wrote that the TCC “do[es] not have the competence to annul a law when delivering a violation judgment in individual application proceedings.” As such, “the effectiveness of the constitutional complaint as a human rights protection tool is heavily dependent on decisions by the ordinary courts implementing those made by the [TCC], especially when there is no binding legislative requirement obliging the ordinary courts to follow the legal reasoning of the [TCC] […] Moreover, the members of the High Courts showed reluctance in accepting a binding force of the [TCC’s] rulings beyond the individual case whenever the legal situation was in contradiction with the constitutional standards.”18
Because the TCC does not have the ability to nullify laws deemed to be in contradiction with ECtHR case law in the course of its rulings, its means of effecting systemic change in the application of the law are beyond the scope of its individual rulings. Members of the other high courts of Turkey are not obliged to follow the lead of the TCC, which sets the stage for contradictory implementations of ECtHR case law to continue.
The group of consultants recommended that the TCC should, “through the reasoning of its judgments and through direct dialogue, persuade high courts about the binding force of the [TCC] rulings in similar cases.” The tools of direct dialogue and persuasion are recommended, in part because there is no formal mechanism for the enforcement of TCC judgments in the Turkish judicial system. Constitutional Court members “reported that the relevant authorities tend to respect the [TCC] rulings and to comply with them,” suggesting that compliance is to some degree a matter of inclination; it is not a process established and enforced by law.
Another concern is whether or not the TCC can offer the same degree of independence from domestic political influence as the ECtHR. Different groups have questioned the ability of the TCC to rule fairly, given that the Turkish judiciary is subject to the same political pressures and societal cleavages that drive many individual’s appeals to a human rights court in the first place.
Concerns about the TCC’s ability to rule impartially have been leveled at it from multiple directions. In late 2012 Tahir Elçi, a Diyarbakır-based human rights lawyer, was quoted by SES Türkiye as saying: “[T]he court has adopted a specific ideological and political approach on the basis of nationalist values. Thus, I worry about its objectivity in its examination of human rights violations.” The same article quotes Justice Orhan Gazi Ertekin, co-chairman of the Democratic Judiciary Association, questioning the TCC’s ability to change its institutional structure and mentality.
The independence of the judiciary from the pressure of the ruling government has also been questioned. In January 2015, the TCC deliberated on the constitutionality of the 10 percent election threshold based on an individual application to the court contending that the threshold violated the right to a free election. Prior to the court’s decision, former TCC head Kılıç indicated that members of the court were under “intense pressure” regarding the ruling. Though Kılıç was ambiguous in identifying the source of that pressure, the newspaper that quotes him levels the blame directly at the government. “The Constitutional Court has recently been targeted by the government over its rulings on individual complaints, particularly for adding to its agenda complaints that the 10 percent election threshold is unconstitutional.”19 Speculation is rife that the TCC’s claim to independence could be curtailed through pressure from the government.20
A number of recent high-profile rulings by the TCC have resulted from individual applications and the court’s new adjudicatory function. When the government blocked access to Twitter in March 2014, it was on the grounds of several individual applications challenging the ban that the court was able to issue a verdict, unanimously ruling the ban to be unconstitutional. In the immediate wake of the court’s ruling, Reuters noted that it was “not immediately clear whether the ruling would lead to a lifting of the block,”21 highlighting the ambiguous enforcement capacity of the TCC.
It was also the newly acquired right of individual application that led to the release of 230 officers accused of plotting to overthrow the AK Party government in the Sledgehammer (Balyoz) case. In comments made after the officers’ release in June 2014, then-Prime Minister Erdoğan highlighted the greater influence accorded to rulings coming from the TCC instead of from the ECtHR. Columnist Semih İdiz characterized the president’s comments thus: “After the release of the officers Erdoğan even said, somewhat cynically, that if they were not given the right to petition the Constitutional Court individually, and had applied to the [ECtHR] instead, they would still be in prison, because Ankara would then merely have paid the fine meted out to Turkey by [the ECtHR] while still keeping the officers in prison.”22
The hopes of Turkey’s European partners that the TCC will continue to function as an independent institution providing checks on the powers of the other branches of government were clearly stated in comments by Gianni Buquicchio, president of the Venice Commission, in a presentation marking the second anniversary of the individual application procedure: “By introducing the individual complaints procedure, Turkey has further strengthened the protection of fundamental human rights contained in its Constitution,” he said, praising then-TCC head Kılıç; “You and your judges have effectively shaped the court to be a bulwark against the excesses of the other state powers.”
An ultimate aim of the ECtHR is to help shape a domestic institutional and judicial landscape in its member states that is capable of justly resolving human rights concerns independent of the Strasbourg court. The endeavor to align Turkey’s system of justice with that of the ECtHR has been a large undertaking and like any overhaul of such scope and significance, the chances for success and failure loom large. Turkey’s relationship with the ECtHR, including the application of its case law through the rulings of the TCC, is shaped by the contemporary political climate in Turkey, but the outcome of this relationship is not foregone. This is a story that is still playing out, and is worth keep an eye on as it does.
- Başak Çalı, “The Logics of Supranational Human Rights Litigation, Official Acknowledgment, and Human Rights Reform: The Southeast Turkey Cases before the European Court of Human Rights, 1996 – 2006,” Law & Social Inquiry: 35 (2010): 320-321.
- Başak Çalı, telephone interview with author, Jan. 14, 2015.
- “Turkey Compensates Cyprus Refugee,” BBC News, Dec. 2, 2003, accessed Jan. 14, 2015, http://news.bbc.co.uk/2/hi/europe/3257880.stm.
- Çalı, telephone interview.
- Başak Çalı, “Turkey’s relationship with the European Court of Human Rights shows that human rights courts play a vital role, but one that can often be vastly improved,” EuroPP Blog, March 14, 2012, accessed Jan. 14, 2015, http://blogs.lse.ac.uk/europpblog/2012/03/14/turkey-echr/.
- Nils Muižnieks, e-mail message to author, Feb. 5, 2015.
- Çalı, telephone interview.
- 29th Reform Monitoring Group Meeting, Press statement, May 9, 2014, accessed Jan. 14, 2015, http://www.abgs.gov.tr/index.php?p=49542&l=2; 30th Reform Monitoring Group Meeting, Press statement, July 23, 2014, accessed Jan. 14, 2015, http://www.abgs.gov.tr/files/haberler/30_rmg_meeting_press_statement.pdf.
- Executions are distinct from the paying of a settlement. These actions are “executions by member states of the courts judgments through the adoption of general measures, such as legislative reform and/or individual measures,” according to the HUDOC database website.
- “Decision on religion courses not a surprise,” Hürriyet Daily News, Oct. 11, 2007, accessed Jan. 14, 2015, http://www.hurriyetdailynews.com/decision-on-religion-courses-not-a-surprise.aspx?pageID=438&n=decision-on-religion-courses-not-a-surprise-2007-10-11.
- Cafer Solgun, “Freedom of religion, conscience for Turkey’s Alevis, too?” Today’s Zaman, Oct. 2, 2014, , accessed Jan. 14, 2015, http://www.todayszaman.com/columnist/cafer-solgun/freedom-of-religion-conscience-for-turkeys-alevis-too_360525.html.
- Çali, telephone interview.
- Başak Çalı, “Third Time Lucky? The Dynamics of the Internationalisation of Domestic Courts, the Turkish Constitutional Court and Women’s Right to Identity in International Law,” EJIL: Talk! Blog, Jan. 29, 2014, accessed Jan. 14, 2015, http://www.ejiltalk.org/third-time-lucky-the-dynamics-of-the-internationalisation-of-domestic-courts-the-turkish-constitutional-court-and-womens-right-to-identity-in-international-law/.
- “Turkey: Individual Access to Constitutional Court” Global Legal Monitor, Oct.12, 2012, accessed Jan. 14, 2015, http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205403364_text.
- Dean Spielmann, “The best practices of individual complaint to the Constitutional Courts of Europe,” speech, July 7, 2014, accessed Jan. 14, 2015, http://www.echr.coe.int/Documents/Speech_20140707_Spielmann_ENG.pdf.
- Muižnieks, e-mail message.
- Spielmann, “The best practices.”
- “Needs Assessment Report on The Individual Application to the Constitutional Court of Turkey,” Human Rights Trust Fund of the Council of Europe, 3.
- “Turkish Constitutional Court head complains of ‘pressure’ on members,” Hürriyet Daily News, Jan. 2, 2015, accessed Jan. 14, 2015, http://www.hurriyetdailynews.com/turkish-constitutional-court-head-complains-of-pressure-on-members.aspx?pageID=238&nID=76408&NewsCatID=338.
- Semih İdiz, “Erdoğan’s new found respect for the Constitutional Court,” Hürriyet Daily News, June 24, 2014, accessed Jan. 14, 2015, http://www.hurriyetdailynews.com/erdogans-new-found-respect–for-the-constitutional-court.aspx?pageID=449&nID=68165&NewsCatID=416.
- Humeyra Pamuk, “Turkey’s Twitter ban violates free speech: constitutional court,” Reuters, April 2, 2014, accessed Jan. 14, 2015, http://www.reuters.com/article/2014/04/02/us-turkey-twitter-ban-idUSBREA311BF20140402
- İdiz, “Erdoğan’s new found respect.”