Turkey and its Non-Implementation Problem

Recently, much discussion has revolved around Turkey and the European Court of Human Rights (‘ECtHR’). First came the criminal court’s decision not to release Osman Kavala from pre-trial detention on 28 January 2020. The domestic court delivered its decision on the grounds that the ECtHR judgment, finding a violation and calling for Kavala’s immediate release, was not yet final. On 18 February 2020, Kavala and other human rights defenders were acquitted of all charges. However, when Kavala was released, he was taken into custody by police officers waiting outside the prison. A day later, he was again put in pre-trial detention, this time under different charges. The same had happened to Selahattin Demirtaş: the first instance court had decided for his release relating to his file before the Grand Chamber at the ECtHR, only to arrest him again under under new charges in a separate investigation file. In both cases, these were ‘manoeuvres’ to circumvent the ECtHR judgments.

Around the same time, the release of statistics by the ECtHR ranked Turkey ‘high’ on the lists. For the period between 1959-2019, Turkey was the country against which the ECtHR has delivered the most judgments. The total number of judgments was a striking 3645, with 88.5% of the judgments finding at least one violation. As for 2019 only, for the total number of judgments delivered, Turkey (113 judgments) ranked second after Russia (198 judgments). For the number of judgments finding at least one violation, Turkey came third after Russia (186 judgments) and Ukraine (109 judgments).

What needs to be added to these discussions on Turkey’s human rights record was the large number of final judgments against Turkey pending implementation before the Committee of Ministers. As of 20 February 2020, with a total number of 667 pending cases, Turkey ranks second after Russia. Moreover, the statistics which indicate that many repetitive cases have been closed in recent years is rather misleading, given that this is the outcome of a change in review policies by the Committee of Ministers rather than actual implementation on Turkey’s part. More worryingly, out of all pending cases for Turkey, 154 are “leading cases”—meaning these cases have raised structural and/or systemic problems which require general measures to be taken, often in the form of legislative amendments or policy changes. As of today, out of all the leading cases from the last ten years, 63% are still pending implementation and Turkey is by no means alone in this implementation problem.

What do the numbers show?

The statistics indicate that, not only Turkey has a deteriorating record of human rights violations, it also has been very slow and even reluctant to implement important judgments. While Turkey has been complying with repetitive ECtHR judgments which can be closed with individual measures and has paid compensation to applicants in the majority of cases, it is much less willing to take steps towards resolving more systemic and structural problems. Ranging from ill-treatment and torture by police and security forces (Batı and others v. Turkey, Erdoğan and others v. Turkey, Kasa v. Turkey) to the unjustified detention of journalists (Nedim Şener v. Turkey), from the lack of legal recognition of the Alevi faith and difference in treatment of cemevis and other places of worship (İzzettin Doğan and others v. Turkey) to the use of excessive force in dispersing peaceful demonstrations (Ataman v. Turkey), from denigrating the President (Artun and Güvener v. Turkey) to the situation regarding missing persons and property claims in Northern Cyprus (Cyprus v. Turkey), pending judgments cover a wide range of significant human rights issues which remain unresolved. Most of these judgments were delivered in the early 2000s and still await full implementation. The lack of implementation for leading cases draws us into a spiral of further violations and a growing number of repetitive cases added to the list each year.

Cases closed too early?

In fact, the sheer number of pending cases and leading cases is only one aspect of the problem. A careful look into closed cases also reveals that some have been prematurely closed, without sufficient measures taken at the domestic level. This further highlights the need to follow up on judgments with increased engagement both from the applicants and from civil society in the implementation and review processes.

 One such example is the Aksoy group. This group, consisting of a total of 310 repetitive cases, involved cases concerning “the unlawful killing of the applicants’ next-of-kin by members of the security forces; the failure to protect the right to life of the applicants’ next-of-kin; ill-treatment; destruction of property and the lack of effective domestic remedies for the applicants’ complaints”. The leading case in this group concerned torture allegations in police custody. The ECtHR concluded that the applicant had been tortured; was detained for a long time without being brought before a judge and without sufficient safeguards, hence “left completely at the mercy of those holding him”, and with the inaction of the State prosecutor to initiate any investigation, he was denied an effective remedy to bring forward his allegations of torture.

Most of the enforced disappearance cases were put under review under the Aksoy group. A submission from Truth Justice Memory Center (Hafıza Merkezi) and the European Center for Constitutional and Human Rights (ECCHR) in 2016 pointed out that most investigations were “either barred by the statute of limitations or under such a risk”. In February 2019, Turkish authorities themselves admitted the deficiencies with regard to individual cases, stating that they “regret to have to indicate that it has not been possible to carry out meaningful investigations to remedy the shortcomings identified by the Court in most of the cases at issue”. Indeed, most of these enforced disappearance cases faced a similar fate at the domestic level: either the cases were time-barred and resulted in decisions of non-prosecution or the accused were acquitted at the trial phase, obstructing the potential reopening of cases. Nevertheless, on 12 March 2019, the Committee of Ministers decided to continue the review for some general measures under other groups, such as Batı and others, Erdoğan and others, or Kasa and 13 cases pending before judicial authorities in Turkey were transferred to the Mahmut Kaya group for review of individual measures. Despite the lack of effective criminal proceedings in many individual cases, the review for the Aksoy group was closed on 12 March 2019.

One of these cases was Tanış and others v. Turkey. In this case, the ECtHR had found that the state’s unwillingness to undertake effective investigations regarding the disappearances constituted a violation of the right to life; that there had also been a violation of the right to liberty and security; that the applicants had suffered inhuman and degrading treatment as a result of their relatives’ disappearances and that their right to an effective remedy had been violated due to the lack of effective investigations. Following many years of prolonged investigations and a decision of non-prosecution in the end, the applicants filed individual applications to the Constitutional Court in 2015. The inadmissibility decision, Mehmet Ata Deniz and others (no. 2015/13893) dated 13 June 2019, came only three months after the Aksoy group was closed by the Committee of Ministers.

The Constitutional Court deemed the applications inadmissible on the grounds that they had not been submitted in a timely manner. According to the Court, the time period between the recognition of the right to individual application to the Constitutional Court and the submission of the applications had been unreasonably long. The Constitutional Court considered that the applicants had been aware that the criminal proceedings were ineffective, hence they should not have waited for the decisions of non-prosecution to submit their applications. Although the Constitutional Court’s strict approach in admissibility and this problematic new case-law in relation to enforced disappearances was raised as an issue in Rule 9 submissions by Truth Justice Memory Center (Hafıza Merkezi) to other case groups under review, it could not be properly brought to the attention of the Committee of Ministers since the relevant Aksoy group was already closed.

Conclusion

It takes many years for any case to reach Strasbourg and for the ECtHR to deliver a judgment, however the journey does not stop there. To perceive judgments as ends entails the danger of cases being neglected. In this regard, a violation judgment is significant but has little effect unless the violation is sufficiently remedied and further violations in the same area are prevented with substantial changes both in legislation and in practice. The involvement of civil society is crucial to advocate for necessary measures to be taken at the domestic level and to ensure the full implementation of judgments.  With a high number of important cases pending, some prematurely closed, and with Turkish authorities displaying more reluctance to implement judgments and finding new ways to render them ineffective, Turkey and its non-implementation problem calls for more attention.

Idil Ozcan volunteers with the European Implementation Network, a Strasbourg-based NGO which advocates for the full and timely implementation of judgments of the European Court of Human Rights. The EIN Handbook about Implementation of Judgments of the European Court of Human Rights is available also in Turkish. A Turkish version of this article appeared in Anayasa Gündemi (Journal of Constitution), an online blog following developments in human rights and constitutional law.

EIN briefings on Turkish cases: Isikirik group, Öner and Türk group, CUMHURİYETÇİ EĞİTİM VE KÜLTÜR MERKEZİ VAKFI GROUP, ZENGIN HASAN AND EYLEM GROUP v TURKEY, and Oya Otaman v Turkey.