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European Court Of Human Rights

SaveTurkishJournalists: RSF appeals to European Court

“You are our last hope” – “We need you” – “We are counting on you” – “Will this ever stop?”

These are the messages that Reporters Without Borders (RSF) is sending to the European Court of Human Rights on behalf of Turkey’s arbitrarily imprisoned journalists, by means of a communication campaign launched on social networks today.

For Turkish journalists who have been arbitrarily jailed, the European Court offers the last hope or being released. The proceedings against these journalists violate the European Convention on Human Rights, with which Turkey must comply as a member of the Council of Europe.

In 2017, the European Court agreed to consider the 20 applications it had received from journalists imprisoned in Turkey, and to give priority to these cases. However, the applications are limited to the issue of their provisional detention and will have little effect after the Turkish courts have finished trying them and have passed sentences.

So, this is urgent. The European Court needs to act quickly!

Three well-known journalists, Ahmet Altan, Mehmet Altan and Nazli Ilicak, were already sentenced to life imprisonment on 16 February on a charge of “trying to overthrow constitutional order” for criticizing the government during a TV broadcast on the eve of an abortive coup d’état in July 2016.

This month, the trial of the Cumhuriyet newspaper’s journalists is due to resume and a verdict is expected in the trial of 26 journalists accused of working for media that supported the movement led by Fethullah Gülen, the alleged instigator of the 2016 coup attempt. The two cases are emblematic of the arbitrary justice prevailing in Turkey’s courts.

The net is closing fast on Turkey’s imprisoned journalists, so RSF urges the European Court to act before it is too late, before sentences are passed!

Turkey is ranked 155th out of 180 countries in RSF’s 2017 World Press Freedom Index.

Source:
https://rsf.org/en/news/saveturkishjournalists-rsf-appeals-european-court

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Scandal response from AKP administration to the European Court of Human Rights’ (ECHR) request for Cizre defense

Scandal response from AKP administration to the European Court of Human Rights’ (ECHR) request for Cizre defense. Turkish government indicated that those killed in basements in Cizre should not be seen as ‘wounded innocent civilians that were awaiting medical aid’. A lot of deaths occurred in basements of apartments in Cizre, a district of Sirnak, on January 7, 2016 when the government implemented curfew times. European Court of Human Rights demanded an explanation for the deaths.

Source:
http://aktifhaber.com/iskence/aihmden-cizre-savunmasi-talebine-akp-yonetiminden-skandal-cevap-h111772.html

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Mehmet Altan and Sahin Alpay should be immediately released

Amnesty International Orange County:

On January 11, 2018, Turkey’s Constitutional Court ruled in a criminal case that Mehmet Altan and fellow journalist Sahin Alpay’s rights were being violated by pre-trial detention and ruled that they should be released, nut the 27th High Criminal Court in Istanbul declined to implement the Constitutional Court decision.

Following the coup attempt in Turkey on July 15, 2016, and the imposition of a state of emergency, over 180 news outlets have been shut down under laws passed by presidential decree. There are now at least 148 writers, journalists, and media workers in prison, making Turkey the biggest jailer of journalists in the world.

Prof. Mehmet Altan and Sahin Alpay are only two of the hundreds of victims of this horrific violation of democratic values and principles within Turkey.

Mehmet Altan, the Faculty of Economics at Istanbul University since 1986, was also a journalist working in the daily Sabah (1987-2006) and worked as an editor-in-chief in the daily Star until 2012. He has been dismissed from his newspaper because of the government’s pressures on free media.

Sahin Alpay, faculty in Bahcesehir University since 2001, was arrested in 2016. He worked as a writer and editor for Cumhuriyet, Sabah, and Milliyet Newspapers. He directed the “Intellectual Perspective” a weekly program at Turkish CNN and he was a columnist at the now closed-down Zaman Newspaper. He also hosted a program, which aired on the now closed-down Mehtap TV channel.

In September 2016, Mehmet Altan and Sahin Alpay were detained as part of a wave of arrests of thinkers and writers following the failed July 2016 coup attempt. Arrested for allegedly giving “subliminal messages” to announce the coup on a television roundtable discussion show, Mr. Altan was charged with attempting to overthrow the “constitutional order”, “interfering with the work of the national assembly”, and “interfering with the work of the government” through violence or force.

Amnesty Orange County call the authorities in Turkey to respect and implement the ruling of the Turkish Constitutional Court for Mehmet Altan and Sahin Alpay to be released immediately alongside all the other journalists and writers, including Mehmet Altan’s brother Ahmet Altan who is also among the incarcerated writers and journalists.

We urge everyone to take action. Please sign the petition linked below: https://www.change.org/p/turkey-mehmet-altan-and-sahin-alpay-should-be-immediately-released?recruiter=841476427&utm_source=share_petition&utm_medium=copylink&utm_campaign=share_petition

This petition will be delivered to:
Turkey Consulate of Turkey in Los Angeles
Embassy of Turkey, Washington, D.C.
TURKEY MINISTRY OF JUSTICE

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Severity of Human Rights Violations in Turkey & Support to Turkish Migrants and Refugees

Since the attempted coup of July 15, 2016, the government of Turkey has been taking strict measures to silence dissidents in other countries from various ideologies recently. One of these opposition groups, the Gulen Movement (a.k.a “Hizmet Movement”, meaning service in Turkish), has been the main target since 2013. The Gulen Movement is a faith-based non-political, cultural and educational movement. The Movement is composed of a cluster of religious, educational and social organizations inspired by Fethullah Gulen.

After the July 15 failed coup attempt, the Turkish government accused Fethullah Gulen and his sympathizers for having a connection with the failed coup. Gulen has repeatedly dismissed any involvement in the coup attempt. Foreign intelligence units such as Germany’s BND Foreign Intelligence Agency’s chief, EU intelligence-sharing unit (Intern), UK Parliament and U.S. House Intel Chair have all noted that there is no evidence that shows Gulen’s involvement. Nonetheless, Gulen spoke to global media outlets right after the coup attempt and called for an open international investigation to find out who was behind the attempt.

Yet, the Turkish government chose to declare state of emergency, which still continues, to purge thousands of people. Alleged supporters of the Movement in Turkey have been dealing with arrest, imprisonment, torture, inhuman and degrading treatment, confiscation and passport seizure. After the failed coup, more than 130,000 people have been arbitrarily detained and more than 60,000 people have been arrested. Most of them are from the elite part of the society and are all well-educated individuals with different backgrounds such as doctors, lawyers, judges, teachers, engineers and so on. The striking point is that most were imprisoned with no compelling evidence of any criminal activity. Nonetheless, there are 17,000 women in jail and 1914 children, where 688 are babies under age of six. There have also been several cases where women who just gave birth have been put in prison with their few days old babies. Moreover, more than 4,400 judges and prosecutors have been dismissed. The government has also seized 3,003 schools, dormitories, and universities. The government has also confiscated more than 800 companies worth more than $10 billion.

All independent media in Turkey have been shut down and confiscated by the government. Turkey is the leading country to imprison most journalists. Turkey has arrested 319 journalists since the coup. A lot of people are arrested for talking against government’s policies. Many students get imprisoned for their critical tweets. 70 thousand students are currently in jail in Turkey.

People are also arrested for having downloaded an encrypted messaging phone application called ByLock. The government believes coup plotters used this application. The Turkish Intelligence Organization (MIT) has handed over a list of people who have allegedly downloaded the application. People who are alleged of downloading the application have been imprisoned. Prof. Izzet Özgenç, who is one of the founders of the Turkish Penal Code, emphasized that the Bylock arrests made without revealing any evidence are unlawful. Recently, Ankara Public Prosecutor’s Office announced that close to 11 thousand people have been mistakenly investigated for use of ByLock. Turkey has also put the Amnesty International’s Turkey head, Taner Kiliç in jail for having downloaded block. While Kiliç claims that he has never downloaded the application, he is facing imprisonment for up to 15 years.

International human rights organizations have condemned and reported the human rights violations occurring in Turkey. Committee to Protect Journalists (CPJ) announced Turkish President Recep Tayyip Erdogan as the winner of ‘Most Outrageous Use of Terror Laws Against the Press’ and ‘Most Thin-skinned’ awards. A new report released by the independent, non-profit and non-partisan watchdog organization Freedom House concluded that democratic principles such as election integrity and freedom of the press, political and civil rights have severely downgraded in Turkey that is no longer ‘a free country’. Human Rights Watch (HRW) reported in its recent “World Report 2018” that innocent people are imprisoned with no substantial evidence, inalienable rights have been taken away, and that there are more than 2,200 cases of torture and ill-treatment. Hugh Williamson, Europe, and Central Asia director at Human Rights Watch said that “everywhere you look, checks and balances that protect human rights and rule of law in Turkey are being eroded”.

Due to increasingly severe human rights violations in Turkey, families have chosen to leave their country to seek safe haven. Many families have sought to enter Europe to seek asylum due to geographical proximity. However, there are also thousands of people who have also successfully reached and sought asylum in the United States. Unfortunately not everyone successfully reaches Europe. On November 21, 2017, Greek media reported that Greek authorities have found bodies of five members of the Maden family, including three children, a short time ago on the Greek Island of Lesvos. The father, Huseyin Maden, and mother, Nur Maden, were allegedly linked to the Gulen Movement and was forced to flee due to arrest warrant issued out on their names. The drowning has sparked outrage over an ongoing political purge.

Regrettably, Turkish government’s actions against the Gulen Movement are not limited to Turkish borders but are also extraterritorial. There are many examples of abductions and physical violence incidents in several countries as well as threats by pro-government people referring to the supporters abroad. Recently some Turkish teachers and principles who worked at schools funded by the Gulen Movement in Malaysia, Pakistan, Iraq, and Afghanistan have been abducted, and in some cases illegally deported back to Turkey.

Families who have successfully reached the United States by escaping the oppression of the Turkish government are now facing new challenges. Most of the families have left everything behind in Turkey; jobs, houses, education, relatives and the Turkish government have blocked their bank accounts. Some families were able to only bring a single luggage.

These families are now in need of shelter, financial support, and acceptance of their asylum applications. You could help by personally providing donations to these individuals, or donate through human rights organizations like Embrace Relief or Advocates of Silenced Turkey, who focuses on these Turkish nationals. You could also help with helping them attain legal help and cover legal fees for their asylum applications, with their education fees. Some other ways you can help is by sending support letters regarding the persecution of these Gulen sympathizers to relevant bodies such as the State Department, embassies and the European Court of Human Rights. You can also create awareness using social media and encourage other human rights and humanitarian aid organizations to create campaigns on behalf of these individuals. Given their circumstance, we hope that you can help these people through your support. Every bit of help will aggregate to make a big difference.


Download as a PDF File: AST_1-25-2018_SEVERITY OF HUMAN RIGHTS VIOLATIONS IN TURKEY & SUPPORT TO TURKISH MIGRANTS AND REFUGEES_P9

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The Freedom House concludes Turkey is no more a free country. What is next?

The Freedom House concludes Turkey is no more a free country. What is next?

A new report released by the independent, non-profit and non-partisan watchdog organization Freedom House concluded that democratic principles such as election integrity and freedom of the press, political and civil rights have severely downgraded in Turkey that is no longer ‘a free country.’ The study added that Turkey’s status declined from Partly Free to Not Free due to a deeply flawed constitutional referendum that centralized power in the presidency, the mass replacement of elected mayors with government appointees, arbitrary prosecutions of rights activists and other perceived enemies of the state, and continued purges of state employees, all of which have left citizens hesitant to express their views on sensitive topics.

The Freedom House has been publishing annual reports since 1973 for assessing the condition of political rights and civil liberties around the world.

It has been a great source for scholars and academics since then. Their methodology is very strong and reliable. Their ranking provides a snapshot of the world and political circumstances in each state. It has always been interpreted seriously by international organizations and financial institutions as well.

The report noted that Turkish president Recep Tayyip Erdoğan broadened and intensified the crackdown on his perceived opponents that began after a failed 2016 coup attempt. In addition to its dire consequences for detained Turkish citizens, shuttered media outlets, and seized businesses, the chaotic purge has become intertwined with an offensive against the Kurdish minority, which in turn has fueled Turkey’s diplomatic and military interventions in neighboring Syria and Iraq.

According to Freedom House, which analyzed data from 195 countries over the 2017 calendar year, Turkey’s passage over the threshold from Partly Free to Not Free is the culmination of a long and accelerating slide in Freedom in the World.

‘The country’s score has been in free fall since 2014 due to an escalating series of assaults on the press, social media users, protesters, political parties, the judiciary, and the electoral system, as President Recep Tayyip Erdoğan fights to impose personalized control over the state and society in a deteriorating domestic and regional security environment. Erdoğan has pushed out his rivals and former allies within the ruling party, reshaped media ownership to fit his needs, and rammed through an unpopular constitutional referendum to create a “super-presidential” system without meaningful checks and balances.’

The study also noted that President Erdogan’s response to the July 2016 coup attempt has become a sprawling witch hunt, resulting in the arrest of some 60,000 people, the closure of over 160 media outlets, and the imprisonment of over 150 journalists. The leaders of the third-largest party in the parliament are in prison, and nearly 100 mayors across the country have been replaced through emergency measures or political pressure from the president. The government has even pressed its crackdown beyond. Turkey’s borders, triggering a flood of Interpol “red notice” requests to detain critics abroad, among other effects.

How will the report affect the Asylum seekers?

Since the controversial coup attempt, thousands of military officials, government officials, academics, and civilians have been detained, arrested or fired from their positions. The purge has led to a large number of these individuals to flee Turkey and seek asylum elsewhere.

It is safe to analyze that The Freedom House report will have major consequences on several issues especially asylum applications of thousands of people since the report extensively provided all the necessary data about the failure of democracy in Turkey. The report which confirmed Turkey’s passage over the threshold from ‘Partly Free to Not Free’ is considered both essential and useful for the court processes of the Asylum applications.

How should NATO respond?

A core principle of the North Atlantic Treaty Organization (NATO) is that member states adhere to democratic values. Here is how NATO defines its core principle and the purpose of its very existence:

‘NATO’s purpose is to guarantee the freedom and security of its members through political and military means. POLITICAL – NATO promotes democratic values and enables members to consult and cooperate on defense and security-related issues to solve problems, build trust and, in the long run, prevent conflict.’

As a democratic security organization, NATO should clarify its stance and policies towards Turkey, which is openly defined as a non-democracy and not-free? Can NATO promote democratic values while one of its biggest members is already defined a dictatorship by non-partisan international organizations?

The recent study by the Freedom House which reports the decline in Turkey’s human rights record may cause some U.S. lawmakers and decision makers to question the country’s NATO membership.

ECtHR appears as a new venue

The shocking lower court rulings of the last several days rejecting the authority of Turkey’s Constitutional Court to hear individual applications has also been considered as the end of the rule of law in Turkey. This new episode in Turkish judiciary will lead the Turkish citizens who seek legal recourse to violations of their rights at European Court of Human Rights (ECtHR) which still remains a proper venue that they should pursue. The recent study by The Freedom House can definitely be used as a source by the Turkish citizens to strengthen their cases at the ECtHR despite the fact that the ruling processes of the Court may take so long.


Download as a PDF File: AST_Turkey_is_no_longer_free_country_what_is_next

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It is high time for the European Court of Human Rights to step in!

Turkey witnessed a coup attempt on 15 July 2016. The 3-month State of the Emergency regime which was declared immediately after the coup attempt (21/07/2016) by the Cabinet “to preserve the democratic order” has since been extended for five times.Despite calls by the European Union, the Council of Europe, and the Venice Commission and numerous human rights institutions for the Turkish government to end it, the State of Emergency Regime remains in effect. In defiance of its purpose, The Turkish government has subversively used the State of Emergency Regime against the country’s democratic parliamentary system, the rule of law and human rights.

During the state of emergency, so far;
-28 deputies have been taken into custody, duly elected mayors of 90 different towns/cities have been removed from office,
-61,247 individuals, including 16 deputies, two members of the Constitutional Court, 193 members of the Court of Cassation, 2360 judges and prosecutors, 571 lawyers and 308 journalists have been arrested,
-As of today, a total of 128,998 people have been taken into custody for terrorism-related offenses (being the members of an armed terrorist organization. 100 people a day are being arrested on average.

With thirty different Emergency Decree Law, which is exempt from judicial review;
-146,713 public servants including 4463 judges and prosecutors, 8693 academics, 6687 doctors and paramedics 44,392 teachers have been dismissed from their jobs,
-3003 private hospitals, schools, student dorms and universities, 187 media outlets, 1,412 associations and 139 charities have been shut down, and their assets have been confiscated,
-1,020 private companies have been seized.

On the face of these human rights breaches, European Court of Human Rights is the ultimate hope of the victims. Yet, the ECHR has been consistently refusing applications on the grounds that the domestic remedies in Turkey is not yet consummated.In order to prevent conviction at the ECHR, the Turkish government instituted the Constitutional Court as an additional court of appeal for individuals and established a highly unproductive Commission on Statutory Decrees Under State of Emergency. Neither institution helps the victims.

Only last week, four separate criminal courts of the first instance have refused to implement an order of the Turkish Constitutional Court to release veteran journalist Mehmet Altan and Sahin Alpay:
-On 11 January 2018, the Turkish Constitutional Court decided that the detention of journalists Sahin Alpay and Mehmet Altan were unlawful and that it constituted a violation of their rights protected by both the Turkish Constitution and the European Convention on Human Rights,
-On the same day, Istanbul 13th and 26th High Penal Courts refused to release Altan and Alpay on the grounds that the decisions (of the TCC) have not yet been published in the Official Gazette,
-On 12 January 2018, Istanbul 13th and 26th High Penal Courts declined release of Altan and Alpay once again on the grounds that the TCC exceeded its authority as specified in the Constitution itself,
-On 15 January 2018, Istanbul 14th and 27th High Penal Courts turned down objections from the lawyers of Altan and Alpay that the decision of the TCC had to be implemented without delay and ordered their detention to continue.

In the light of the above, there is without a doubt no effective domestic remedy in Turkey and the judicial hierarchy as determined by the Turkish Constitution has been disrupted.

We, therefore, urge The European Court of Human Rights to reconsider its current view that the Turkish Constitutional Court offers an effective domestic remedy and start without further delay reconsidering applications brought by thousands of victims against Turkey.

It is high time for the European Court of Human Rights to step in!

We urge everyone to take action. Please sign the petition linked below:
https://www.change.org/p/the-european-court-of-human-rights-the-council-of-europe-it-is-high-time-for-the-european-court-of-human-rights-to-step-in?recruiter=735343625&utm_source=share_petition&utm_medium=copylink&utm_campaign=share_petition&utm_term=share_twitter_responsive

This petition will be delivered to:
The European Court of Human Rights
The Council of Europe

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European Court Of Human Rights Should Reconsider Judicial Independence in Turkey

POSITION PAPER
EUROPEAN COURT OF HUMAN RIGHTS SHOULD RECONSIDER JUDICIAL INDEPENDENCE IN TURKEY BEFORE REFERRING CASES TO DOMESTIC AUTHORITIES

Background
In recent years and in particular in the aftermath of attempted coup of  July 15, 2016, the Turkish government has been targeting dissidents belonging to different ideologies. Among the many dissident groups, in particular the Gulen Movement has been the primary target. The members or sympathizers of the movement have been subject to extreme and unlawful measures,  including dismissals, detention, arrest, imprisonment, enforced and involuntary disappearance, seizure of their assets and passport cancellation. International organizations, including the United Nations, the Council of Europe and the European Union have repeatedly expressed their grave concern regarding the human rights violations perpetrated on individuals by the government. Repeated calls to Turkey to comply with its obligations under its own legislation and the international human rights law have however had little, if any effect to the improvement of the human rights situation in the country.
The far-reaching, increasingly repressive and almost unlimited discretionary powers exercised by the Turkish authorities during the state of emergency – now in its 15th month – endanger the general principles of rule of law and human rights safeguards, the ones the state of emergency is designed to protect.
The human rights protection system of the Council of Europe thus represented,  a glimmer of hope for the people of Turkey as it has been traditionally one of the most successful systems in the world protecting human rights and fundamental freedoms, which decisions are also binding for Turkey.
Regrettably, the European Court of Human Rights (hereinafter “ECtHR”), which monitors the implementation of the European Convention on Human Rights in the Council of Europe member states has been rejecting the applications related to recent events taking place in Turkey on the ground that the applicants have not exhausted domestic remedies. The Court specifically refers to the need to exhaust “available” domestic remedies, i.e. including the complaint procedure presumably offered through the establishment of the State of Emergency Inquiry Commission (hereinafter “the Commission”), as provided for in Emergency Decree 685.

Brief analysis
The brief analysis in this section argues that the establishment of the Commission cannot be an effective remedy for more than 100,000 dismissed individuals.
In absence of any clear procedure to challenge decisions on their abrupt dismissal, public officials dismissed from office and organizations dissolved by emergency decrees launched either individual or concurrent appeals with administrative bodies (administrative remedy), administrative courts, the Constitutional Court and the European Court of Human Rights . The outcome of the appeals has been devastating for hundreds of thousands of families and entire communities across Turkey.
Few administrative appeals have been relatively successful in restoring several individuals in their former positions. Administrative appeals however are not guided by any rules or principles and in no respect can these appeals be regarded as an effective remedy.
In the aftermath of July 15, 2016, both the Constitutional Court and the ECtHR were flooded with individual applications originating from Turkey. 8,308 applications were lodged with the ECtHR against Turkey in 2016, compared to only 2,212 in the previous year [2015].[1] If necessary measures were not taken, having into account that most dismissals have not yet been brought before the ECtHR in the post July 15 context, it was obvious that the sheer volume of applications yet to reach the ECtHR, seriously risked bringing down the entire ECtHR system.
The Venice Commission noted in the above context that both administrative courts and individual application to the Constitutional Court were not available to public officials who were dismissed by Emergency Decrees.[2] Having made this determination, the Venice Commission recommended that the government establish an ad hoc commission to review the State of Emergency measures.[3] The Secretary General of the Council of Europe made a similar recommendation, which was supported by an ad hoc sub-committee established by the Parliamentary Assembly of the Council of Europe.[4]
With the intention to preempt sharp criticism from the Council of Europe resulting from its relentless crackdown on dissent, the government issued Emergency Decree 685,[5] which establishes the Commission.[6]
To illustrate the immediate effect of its issuance, on the same day the Emergency Decree was published (January 23, 2017), the Parliamentary Assembly of the Council of Europe rejected[7] the request to hold an urgent debate on Turkey.[8]
By mid-November 2017 the Commission has received more than 100,000 cases from different occupational groups such as military personnel, police officers, teachers and academics. Since its establishment the Commission has taken no single decision on any of the hundreds of thousands of applications it has received ever since. As a matter of fact, the government is yet to appoint a president to head the Commission.[9]
Even if the Commission begins its work immediately, there will still be doubts regarding its impartiality, just as the judicial system in general. These concerns have been, inter alia, raised by various governmental, intergovernmental and non-governmental organizations as well as legal and human rights experts. Former judge of the ECtHR Riza Turmen, for instance, has argued  that possible non-transparency of the Commission’s work and appointment of its members create reasonable questions regarding its independence.[10]
The Commission is predetermined to fail in achieving its alleged objectives and serve the interests of justice:
First, the seven members of the Commission are chosen from the same institutions that have decided for the dismissals.[11] The principles of independence and impartiality are thus disregarded from its inception.
Second, even based on the most optimistic estimates and presuming that it performs its work in good faith – given the workload, it will take many years for the seven-member Commission to review hundreds of thousands of applications – that is only one of the subsequent domestic remedies to be exhausted.
Third, for cases reversed by the administrative courts, the appeals or the Constitutional Court, the cycle of exhaustion of domestic remedies will take many more years and those cases will probably never be able to reach the ECtHR, or even their day in court.
Fourth, pursuant to Article 9 of KHK 685, “the Commission shall perform its examinations on the basis of the documents in the files,” which are out of reach of those dismissed. In absence of any knowledge on the entities or groups which were presumably designated by the National Security Council as being “terrorist organizations”, this fact alone wipes-out the opportunity of those dismissed to have any defense, let alone effective defense.
Fifth, the Commission is presumed to work and take its decisions on the basis of information and documents provided by the government, which can decide on a case-by-case basis which documents to disclose. Even if the government would be willing to disclose all relevant documents to the Commission – the later has no authority in reviewing classified documents. Since the dismissals have been argued on basis of terrorist affiliation which undermines, inter alia, national security – most of the documents that the government claims to have played a role in the dismissals, as state secrets, will be out of the reach of the Committee.
The Venice Commission, supporting the idea of an ad hoc body for the review of the emergency measures envisaged that “the essential purpose of that body would be to give individualized treatment to all cases. That body would have to respect the basic principles of due process, examine specific evidence and issue reasoned decisions. This body should be independent, impartial and be given sufficient powers to restore the status quo ante, and/or, where appropriate, to provide adequate compensation. The law should enable for subsequent judicial review of decisions of this ad hoc body. Limits and forms of any compensation may be set by Parliament in a special post-emergency legislation, with due regard to the Constitution of Turkey and its international human-rights obligations.”[12]
In conclusion, the State of Emergency Inquiry Commission will certainly not be able to meet the criteria foreseen by the Venice Commission and the standards adopted in the case-law of the ECtHR. The establishment of the Commission will only serve the immediate interests of the ECtHR and the government of Turkey, not the interests of justice and those hundreds of thousands of individuals. In addition:
The establishment of the Commission is expected to create much more serious consequences. Hundreds of thousands of individuals who have suffered injustice will turn to the ECtHR in several years later as the Commission will not provide any justice. By that time the government would have “acquired” between approximately two to ten years, maybe more. During the same time, hundreds of thousands of people will have suffered tremendously without any available remedy.
During this long period, the applicants not only will be condemned to a “slow death” – they will also continue to bear the label of ‘terrorist’. They shall not be eligible to work in public service and their social security records will show that they were dismissed by an emergency decree.
Based on the complicated procedures related to the Commission, it is expected that individuals who are denied the opportunity to challenge the criminal charges against them for an entire year, will wait before an administrative commission for years and then apply for an administrative judicial review, which, as explained above, has no power to remedy the situation. In short, this is undoubtedly a reversal of the presumption of innocence.

Rule of law in the country
Rule of law within the country has started to be weakened by the government’s policies. According to the World Justice Project’s Rule of Law Index,[13] Turkey was ranked among the worst 15 out of 113 countries, dropping 8 positions compared to the last year and trailing countries such as Iran, Russia, Guatemala and Myanmar.[14] The Index is calculated taking into consideration different crucial components such as “Constraints on Government Power, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice and Criminal Justice,” and Turkey’s scores are not promising in any of these. Moreover, consecutive reports prepared by the Venice Commission have been pointing out the problems regarding the rule of law. The Venice Commission has published detailed reports and opinions on the situation in Turkey most of which have common points. Especially after the attempted coup in 2016, measures taken in the country failed to meet the requirements of the rule of law such as necessity and proportionality. Additionally, the basic principle of separation of powers is under threat for a long time, risking the independence of judiciary.[15]
The three crucial components of what constitutes a fair trial, namely the defense, the prosecution and the courts, have all collapsed in Turkey in recent years, turning the judicial system into merely an extension of the political authority that thwarts an effective defense and appoints (or better employs) partisan and loyalist prosecutors and judges.
Dismissals of judges in particular have had an adverse and devastating effect on the Turkish judiciary, its independence and the effectiveness of the principle of separation of powers. In the current circumstances, when thousands of judges are detained and imprisoned (close to one-third of judges and prosecutors), it is inconceivable that the remaining judges could reverse any measure declared under the emergency decree laws out of fear of becoming subject to such measures themselves.
The U.S. State Department’s Human Rights Report in 2016 has explicitly asserted that the government’s applications have a “chilling effect on judicial independence” especially as regards the politically sensitive cases.[16] Likewise, the Human Rights Watch and Amnesty International have expressed their concerns that imprisonment and dismissal of officials jeopardize judicial independence, and moreover that new laws tying the judiciary to the executive poses a clear threat to the rule of law.[17] Both organizations are rightfully worried about the newly created appointment system of judges and prosecutors as well as recently established courts with power over politically sensitive investigations.[18]
Similarly, the International Commission of Jurists (ICJ) has indicated that the “selection and appointment process as a whole is highly susceptible to executive manipulation, and likely to be weighted against candidates who are not seen as supportive of the government.” The ICJ has also drawn attention to the criminal charges against judges and prosecutors and specified that many  officials from the judiciary were dismissed because their judgments were conflicting government’s interests. According to the ICJ this amount of interference with the judiciary is clearly against internationally accepted standards.[19] The International Commission of Jurists and other international organizations have determined that the independence of the judiciary has now been eroded to its core in Turkey.[20]
In December 2016, the Board of the European Network of Councils for the Judiciary (ENCJ) concluded that the Turkish High Council for Judges and Prosecutors (HSYK) no longer meets the requirements of the ENCJ, so as to ensure the independence of the Turkish Judiciary. The ENCJ General Assembly accordingly resolved to suspend, with no Council member voting against, the observer status of the Turkish High Council for Judges and Prosecutors (HSYK).[21]
The Parliamentary Assembly of the Council of Europe decided on April 25, 2017 to reopen the monitoring procedure in respect of Turkey until “serious concerns” about respect for human rights, democracy and the rule of law “are addressed in a satisfactory manner.”
The above concerns were also voiced by the former chief justice of the Turkish Constitutional Court, Hasim Kilic, who stated that  “Everybody knows the political views of judges and prosecutors, even in the remotest villages of the country. We cannot move forward with such a judiciary,” and he continued “The judiciary is not an instrument of revenge, it is not anyone’s tool to achieve their aims.”[22] Ergun Ozbudun, Professor of Political Science and Constitutional Law, also raised similar concerns when he commented on the proposed constitutional amendment (which was adopted through referendum afterwards) and said “What we have here is the weakening of legislation while the president, with full executive powers, forms a parliament under his influence.” Furthermore, Metin Feyzioglu, head of the Turkish Bar Association, stated that “This is a system that will finish judicial integrity and sovereignty,” reminding that half of the judges are to be appointed by the president.[23]
Nils Muiznieks, Council of Europe Commissioner for Human Rights as well remarked that independence and impartiality of judiciary have started to be eroded and must be redeveloped as soon as possible. He added that “it is in particular the role of the criminal judges of peace that is the most concerning, because these formations have transformed into an instrument of judicial harassment to stifle opposition and legitimate criticism.”[24]
The list of similar reports and statements raising above-mentioned concerns grows everyday thanks to the government’s new actions. In the light of all the above, one can conclude that the judicial system in Turkey has been weakened by the government’s actions, therefore; it is highly likely that judges cannot give verdict against the ruling party’s interests not to face different types of punishments including imprisonment.
There have been cases in the past where the European Court examined the cases substantially even though the domestic remedies were not exhausted, when it was believed that they were not available or not going to be effective. For instance, in Akdivar v. Turkey (1996) case the Court stated that the Court “must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants.”[25] Hence, merely having the domestic rules providing remedies to the victims is not seen as satisfactory by the ECtHR. We believe the current situation in Turkey as well falls into this category and warrants immediate action by the Court. Hence, the ECtHR should not reject cases on the ground that the applicants could have gone to the domestic authorities from which, with great deal of certainty they will not receive any effective remedy.


Download PDF File: EUROPEAN COURT OF HUMAN RIGHTS SHOULD RECONSIDER JUDICIAL INDEPENDENCE IN TURKEY BEFORE REFERRING CASES TO DOMESTIC AUTHORITIES

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