October 18, 2016
Guest post by Duygu Çiçek – LL.M. in Human Rights from the University of Edinburgh (2015-2016)
Turkey’s recent attempted coup of the 15th of July exposed various discussions and conspiracy theories about the reasons behind the coup as well as future concerns regarding political dynamics at the domestic and international level. This contribution, however, will specifically focus on the massive purges occurring in the aftermath of the failed coup and the human rights implications of these violations within the ambit of the European Court of Human Rights’ jurisprudence, with a specific focus on the example of lustration.
Turkey’s current de-Gülenization movement has employed harsh measures, including torture and ill treatment of detainees, arbitrary detention of people in the absence of due process, as well as the screening, suspension, and dismissal of tens of thousands of teachers, public employees, judges, prosecutors, academics, and journalists accused of aligning themselves with the Gülen movement. The recent Decree-Law no. 672 enacted under the state of emergency does not only regulate the dismissal of public officials who are related to FETÖ (“Fethullah Gülen Terror Organization”, accused of creating a parallel state and organizing the coup attempt), but also bans them from working in the public field in the future, aiming to sweep out the influence of this movement from state institutions as well as the private sector. All these measures violate the European Convention on Human Rights (“the ECHR” or “the Convention”) and go beyond what can be justified even under the state of emergency invoked by the Turkish government.
These violations and massive purges suggest some parallels with the lustration process in Central and Eastern Europe after the collapse of the communist regimes to cleanse the Soviet influence to restructure the post-Cold War society. Although the political dynamics leading to purges are significantly different in de-Gülenization and lustration, these two phenomenon share important commonalities regarding the violations that occurred during the purges. Yet, measures applied within the context of Turkey are even harsher. Therefore, the European Court of Human Rights’ (“the ECtHR” or “the Court”) long-rooted lustration jurisprudence is worth analysing here.
Application of the ECtHR’s lustration case law to the current situation in Turkey
The Court’s jurisprudence has formed a consistent case law and has set forth the criteria regulating violations of Article 6, 8, and 14 within this context. Most recently, the case of Ivanovski v. the Former Yugoslav Republic of Macedonia gives a good summary of the ECtHR’s approach regarding violations of Articles 6 and 8 in the lustration context. The applicant, who was the former President of the Constitutional Court, alleged that the Macedonian domestic authorities’ decision to dismiss him as a result of the lustration proceedings against him, were unfair and had violated his right to respect for private life.
Regarding the violation of Article 6, the ECtHR ruled that the Constitutional Court did not provide a fair hearing to the applicant due to the preconceived opinion and political influence of FYROM’s leaders over the Constitutional Court. The ECtHR consequently found that the applicant’s right to a fair trial was violated. Before focusing on the Court’s assessment, note that although lustration processes are usually treated as administrative procedures at the domestic level, the ECtHR has not restrained itself from interpreting them as a form of criminal procedure and applied Article 6 to these cases. Considering the nature of the offense as well as the severity of sanctions and other harsh consequences associated with them, the ECtHR usually accepts the claims within the ambit of Article 6. Coming back to the Ivanovski case, although the Court found a violation based on overall unfairness of hearings, the scope of Article 6 within the lustration context is wider. A very important aspect of the right to a fair trial within this context is the principle of the equality of arms. Although the Court did not see any need to examine the applicant’s complaint considering the equality of arms in Ivanovski, in the case of Matyjek v Poland, the ECtHR stressed that the Court should grant applicants access to evidentiary documents that governments use to base their lustration allegations. Denial of this access on the ground of confidentiality would place the applicant at a substantial disadvantage and consequently violate the principle of the equality of arms.[i] Another aspect of the right to a fair trial in the lustration context is the preservation of the right to appeal.[ii] Taking these principles into consideration, Turkey is in violation of Article 6 by denying the victims’ access to documents that the accusations are based on. Moreover, victims of dismissal are denied any legal authority to which they could bring their claims to appeal. Consequently, Turkey’s current measures constitute a serious violation of Article 6.
Secondly, concerning the violation of Article 8, the ECtHR assessed the severity of the lustration measures in the case of Ivanovski v. the Former Yugoslav Republic of Macedonia and found the Macedonian authorities in violation of the applicant’s right to private life. The Court based its decision on the fact that the measures not only consisted of the dismissal of the applicant from his position as the President of the Constitutional Court, but also a ban from any employment in the public service or academia for 5 years.[iii] The Turkish example goes beyond the Macedonian example by not only dismissing people from their current positions, but also banning them from the public sector forever. Moreover, given the demonization that these people are going through, there is a very small chance that they could find any job in the private sector. The Court traditionally holds such interferences, which cause extensive damage to the private lives of victims of lustration, to a proportionality test. According to the Court’s well-established criteria, the interference should be “lawful,” pursue a “legitimate aim,” and be “necessary in a democratic society.” In the Turkish example, the measures are based upon a decree with the force of law. Article 13 of the Turkish Constitution states that fundamental rights and freedoms may be restricted only by law and without infringing upon their essence. Therefore, the current decree does not satisfy the lawfulness criterion. In addition to this, although, the ECtHR accepts that states have a margin of appreciation in assessing the legitimate aim of ensuring national security by dismissing or suspending subjects of lustration from public sector, the interference should still be necessary in a democratic society, meaning that it should answer a “pressing social need” and be proportionate. The Court evaluates whether the personal and temporal scope of a given lustration law is well-framed. The temporal scope aspect of the interference is important in terms of the legitimacy of the interference in question because after a certain amount of time – the state of emergency in the case of Turkey – these measures will lose their legitimacy, particularly when the threat is not imminent anymore. The same logic remains valid for the personal scope aspect. Although states’ expectation for loyalty from specific professions, such as the military and police, is understandable the measures lose legitimacy when they are extended to every single profession. In the case of Ivanovski v. the Former Yugoslav Republic of Macedonia, the Court found that the interference was disproportionate to the legitimate aim sought to be achieved.[iv] In the example of Turkey, the personal scope of the decree is not limited to certain professions, but it is applied arbitrarily to various professions including teachers, public employees, judges, prosecutors, academics, and journalists. Additionally, as stated above, the ban from the public sector is not limited to a short time period – it is permanent. Therefore, one cannot say that Turkey’s harsher measures are proportionate to the legitimate aim pursued.
Lastly, the ECtHR has also found a violation of Article 14 in conjunction with Article 8 in some cases. For instance, in the case of Sidabras and Džiautas v. Lithuania, the Court stated that discriminatory treatment against the applicants who were former KGB agents led to the violation of Article 14, which prohibits discrimination based on political opinion. The ECtHR stated:
State-imposed restrictions on a person’s opportunity to find employment with a private company for reasons of lack of loyalty to the State cannot be justified from the Convention perspective in the same manner as restrictions on access to their employment in the public service, regardless of the private company’s importance to the State’s economic, political or security interests.[v]
Although the Turkish decree-law does not directly impose such a restriction, de facto discrimination constitutes an imminent concern in that sense.
The overall impression of the measures applied in the aftermath of the attempted coup in Turkey remains concerning the severity of violations of Article 6, 8, and 14 of the Convention. The Court’s case law on lustration paints a vivid picture of the criteria that govern these measures. Turkey is in direct violation of these criteria and should immediately stop applying these arbitrary measures and introduce a legal framework that is compatible with the ECHR to the dismissal and suspension measures. Vengeance should not prevail over justice.
[i] The case of Matyjek v Poland, ECtHR, Application no: 38184/03, (24 September 2007) at paras 55-56.
[ii] The case of Matyjek v Poland at para 64, the case of Ivanovski v the Former Yugoslav Republic of Macedonia ECtHR, Application no: 29908/11, (21 April 2016) at para 106.
[iii] The case of Ivanovski v the Former Yugoslav Republic of Macedonia at para 177.
[iv] The case of Ivanovski v the Former Yugoslav Republic of Macedonia at para 183.
[v] The case of Sidabras and Džiautas v. Lithuania ECtHR, Application nos: 55480/00 and 59330/00, (27 October 2014).at para 58.