By Hakan Kaplankaya (Former Turkish diplomat, jurist, INSTITUDE member)
Robert Spano, President of the European Court of Human Rights (ECtHR), paid an official visit to Turkey upon the invitation of the Turkish Minister of Justice between 3-5 September 2020. He was accompanied by Saadet Yüksel, national Judge of Turkey and Hasan Bakırcı, Deputy Section Registrar at the Court. In respect to the events and meetings held during this visit, Spano and the Strasbourg Court have been harshly criticized for undermining its independence, neutrality and ethical rules. Thus, it would not be wrong to stress that the reputation of the young and ambitious President of the Court has been considerably damaged at an early stage of his tenure.
What makes this visit unusual is that it coincided with a period in which the judicial independence in Turkey is seriously compromised, a substantial part of the media is kept under government control, and dissenting voices are being silenced instantly. Furthermore, millions of people are suffering from human rights violations by way of dismissals from their jobs, excessive bans on the enjoyment of fundamental rights and freedoms, bogus criminal charges, deprivation of the right to fair trial, systematic inhuman treatments, torture and other grievances that amount to civil death. Moreover, Turkey has transformed into a competitive authoritarian regime which led international human rights NGOs to qualify Turkey as “not free” with the establishment of a sui generis presidential system in recent years after the constitutional amendments in 2017. Under these circumstances, the visit by President Spano, which caused a strong perception that he merely touched upon certain commonly known general principles and evident problems of Turkey just for the sake of appearance, led to disillusionment.
Reactions Over Spano’s Visit
Renowned human rights scholar Başak Çalı is among those who criticized this trip. She shared some social media posts, in which she expressed that Spano’s ‘comprehensive speech’ at the Justice Academy had not contained any information exposing Turkey’s tragical state regarding the huge number of complaints against Turkey before the Court and (non-)implementation of its rulings. She also put forward that the photograph in which Spano and Saadet Yüksel appeared in front of a school along with the provincial executives of the ruling party in a small city in southeastern Turkey exposed various improper aspects of the visit. She also found the receipt of an honorary doctorate from Istanbul University unacceptable, it being the school which publicly opposed to the ‘Academics for Peace’ exercising their freedom of expression in support of peace with Kurds, and went on to dismiss plenty of academics who later lodged complaints with the ECtHR for being arbitrarily purged.
Kerem Altıparmak, a prominent Turkish human rights lawyer, stated in his social media posts that after reading the speech of Spano at the Justice Academy, one would believe that Turkey has no serious human rights issues save for just some minor matters that could be easily solved by training the judges. In addition, Altıparmak importantly expressed that the organizers of this trip could not have prepared a more symbolic program, taking into account that Spano was taken to the Justice Academy for the remembrance of 4260 purged judges and prosecutors, and then to a university bringing to mind the more than 6000 academics dismissed from universities, and that he finally met with the trustee of the Mardin Municipality as the symbol of the arrests of thousands of HDP (a Kurdish opposition party) politicians who were replaced by trustees in most of the HDP-won municipalities.
Dilek Kurban, another reputable human rights scholar, has stressed in her article that Spano paid this visit at a time when Turkey is increasingly getting more autocratic, the judiciary has been dismantled and certain rulings of ECtHR are being disregarded. What is worse is that Turkish Constitutional Court has recently unanimously decided to disregard the jurisprudence of ECtHR arguing that it is much better situated than the ECtHR to interpret the national law. Kurban also underlined that during his visit Spano only engaged with certain institutions, politicians and officials, who are part of the Erdogan government or have bowed before it; but had no contact with civil society, human rights activists or opposition leaders; leaving their meeting requests unanswered. In addition, she criticized the receipt of the honorary doctorate and the visit to the aforesaid high school built with the financial support of the family of Turkish judge Yüksel. She also concluded that this visit has severely overshadowed the neutrality of the Court and jeopardized the principled adjudication mandate of the ECtHR. Therefore, she suggests that the best option for Spano to repair his credibility is to resign.
Concerning this visit, Turkish academics Tolga Şirin and Umut Oran Orcan questioned in their co-authored piece whether Spano gave a “just” appearance in Turkey, referring to the scandalous contacts during the visit as well as the speeches given by Spano without criticizing or addressing the dire human rights situation in Turkey. They drew attention to the charming dictum that is repeatedly emphasized in the rulings of the ECtHR, “justice must not only be done, it must also be seen to be done”. They concluded that this visit is of symbolic significance in a negative way and that the Court’s prestige in the eyes of the Turkish public opinion is currently at its lowest ever level under Spano’s leadership.
Şebnem Korur Fincancı, a prominent human rights activist, expressed in a podcast program that Spano’s visit to only government officials and entities affiliated to Erdoğan’s AKP (the ruling party) cannot be explained with a ‘routine’ program. She also stated that the fact students were not let in for Spano’s speech at Istanbul University made this visit “a pro-government puppet show”. She suggests that the ECtHR should call on Spano for resignation as his scandalous visit led to questions concerning the (im)partiality and independence of the Court.
What Might Spano Have Aimed For with This Visit?
According to the statement made by the ECtHR to the Financial Times, President Spano accepted the invitation of the Turkish Minister of Justice to be able to convey “a very important message”. This message was that governments cannot control the courts and must respect and implement the judgments of the ECtHR. This statement suggests that Spano intended to perform sort of a diplomatic or political task or to pursue the channel of dialogue to convince the Turkish government to revisit its acts which are incompatible with judicial independence and the obligation to comply with the ECtHR case law. However, it is apparent that Spano has fallen victim to his self-confidence and career ambitions by attempting to exert influence on the Turkish government. It was, after all, the same government with which the EU and many world leaders failed to reach a compromise despite constructive dialogues in many political and legal matters.
First of all, judges and courts in principle speak and give messages with their decisions, and as such should abstain from getting involved in political discussions and negotiations as much as possible. In this regard, the main instrument that the ECtHR judges can utilize to convey a message to Turkey are the very rulings of the ECtHR. However, it is also understandable that President Spano, representing the Strasbourg Court, carries out judicial dialogue with domestic judicial officials and may have courtesy meetings with state officials. But, unquestionably, some parts of his visit were not appropriate for his official capacity; namely the private-seeming visit together with provincial executives of the AKP to a school built in Mardin by the family of national judge Yüksel and receiving an honorary doctorate from a university which arbitrarily dismissed many scholars who are actual or prospective applicants before the ECtHR. Besides, many factual cases and the recent human rights record of Turkey, as argued below in detail, suggest that conveying such a crucial message to the incumbent Turkish government is almost an unachievable mission.
Considering the relations between Turkey and the Council of Europe/ECtHR, one can easily conceive that a judicial dialogue with Turkey would less likely yield any plausible result. This can simply be inferred from certain cases before the ECtHR and the reaction of the Turkish authorities thereto.
ECtHR’s Recent Responses Condoning the Turkish Government
In connection with the arbitrary massive purge by the Erdoğan government after the coup attempt in 2016 in Turkey, thousands of dismissed civil servants lodged complaints with the Court asserting that there was no legal remedy in Turkey in regard to acts of dismissals via decree laws, which fall outside the jurisdiction of the ordinary courts and the Turkish Constitutional Court. However, the ECtHR, as specified in Zihni v. Turkey, found these applications inadmissible on the grounds that they had not exhausted domestic remedies, and referred them to the Turkish Constitutional Court. After this decision, Council of Europe officials, most probably including members and/or jurists of the ECtHR, and the Turkish government carried out discussions with a view to precluding potential Turkish complainants in similar cases from making individual applications before the Strasbourg Court, by providing them with a domestic remedy which has to be exhausted in order to comply with the admissibility criteria before the ECtHR. This dialogue led to the establishment of the “State of Emergency Measures Inquiry Commission” (Commission), decisions of which would be further reviewed by administrative courts and finally by the Constitutional Court. After this Commission came into existence but before it started to scrutinize the dismissals via decree laws, the ECtHR rendered another landmark ruling, namely Köksal v. Turkey, and accepted, albeit provisionally, that the mentioned Commission was an effective domestic remedy –
Based on the latest report released by the Commission, it has completed the inquiry of 85% of all applications and declined 88,7% of the applications it reviewed so far. As Kerem Altıparmak has soundly highlighted, the Commission has many deficiencies to qualify as an effective remedy due to its lack of independence from the executive and procedural constraints to ensure a fair process, as well as insufficient jurisdiction to provide restitution and its ex post facto nature. Furthermore, the Commission and the Erdoğan government still insist that dismissed officers, who have subsequently been acquitted or whose criminal cases have been closed with non-prosecution decisions by Turkish courts, may not be reinstated; claiming that the government may prefer not to employ those who are still considered ‘undesired’. This entails that acquittal decisions about people who had been purged due to their alleged ties with terrorist organizations are not being respected and implemented by the government. The whole process reveals that the Turkish government is inclined to abuse dialogue processes by instrumentalizing them as cooling-off periods and that it may derail the envisaged roadmaps by transgressing the principle of good faith.
Turkey’s Response to the ECtHR’s Wishful Messages
Non-execution of certain judgments of the ECtHR pronounced in the last years can be taken as an indication that the incumbent Turkish government is reluctant to conduct a cooperative dialogue with the Court officials. In this context, inter alia, the Kavala and Demirtaş judgments of the ECtHR, in which the detention of applicants was found to be politically motivated, are not being implemented by Turkish judiciary although these rulings require prompt release of the individuals concerned. To circumvent the legal obligations arising out of these judgments to free Selahattin Demirtaş (former leader of the Kurdish opposition party HDP) and Osman Kavala (a prominent philanthropist and businessman), new arrest warrants were issued against them in the context of new bogus charges on the very same day that the courts of assizes arrived at decisions for their release. In doing so, Turkey has taken tricky steps to frustrate the said ECtHR rulings and kept Demirtaş and Kavala in prison. Considering these insincere acts and measures of Turkey, one should not be surprised if the efforts made to convey a message to the Turkish government do not result in affirmative responses and if the goodwill demonstrated to Turkey is abused.
On top of that, as Dilek Kurban highlights, the Turkish Constitutional Court lately unveiled its human rights policy in its unanimously adopted Yıldırım Turan judgment, which contradicts article 46 of the Convention. This ruling rejected the findings of the ECtHR’s Alparslan Altan v. Turkey judgment which would also be applicable to the other purged judges’ cases, and it argued that it is itself much better placed than the European Court to interpret Turkish law. Referring to the subsidiarity principle, under which the ECtHR tolerates to some degree national practices within the Strasbourg review context, the Turkish Constitutional Court overturned the legal argumentation of the Strasbourg Court. By doing so, it subtly relied on the ECtHR’s margin of appreciation doctrine with a view to finding a tenable solution to disregard the Alparslan Altan judgment.
In fact, Spano’s visit had already been scheduled before the Turkish Constitutional Court handed down this shocking decision. In other words, Spano had not known that he would be visiting a country where ECtHR’s caselaw is frustrated, when he accepted the invitation of the Turkish Justice Minister. Apparently, this unfortunate approach of the Turkish apex court did not convince Judge Spano to cancel this visit.
What Should Have Been Done Before the Visit and What to Do in its Aftermath
Another point that Spano should have taken into consideration is the fact that the worrying situation of the Turkish judiciary is quite complicated and is a direct consequence of the leadership style and political choices of the incumbent government. In this context, it should also be kept in mind that the Turkish judiciary is no longer considered independent and that Turkey is classified as “not free” by credible international civil organizations. These facts may easily be verified looking at the imprisonment processes of Pastor Andrew Brunson and journalist Deniz Yücel and the way in which they were released. Both Brunson and Yücel were kept in jail for sham accusations by Turkey as bargaining chips respectively against the US and Germany. And they were finally released by the Turkish government as a result of secret political negotiations and/or sanction threats. This indicates that the Erdoğan government does not hesitate to attempt to use the judiciary as a political tool when needed and that the Turkish judiciary is not able to resist political meddling. Therefore, a rational and wise top judge, who was able to thoroughly analyze these cases, should not have overestimated his chances of convincing the Turkish government to abide by universal human rights principles.
From the outset of his tenure at the Court till very recently, Spano sat at the Second Section of the ECtHR which oversees the individual applications of Turkish complainants, first as a member and then as section president. Thus, he should have gotten acquainted with the Turkish government’s (lacking) degree of sensibility in human rights matters as well as its grip on the judiciary. Put differently, Spano had been well aware of the abovementioned judicial malfunctioning and the political moves of the Erdoğan government concerning these cases. Thus, Spano, as the representative of the most respectful human rights protection institution, should not have disregarded the limitations of conducting dialogue with the Turkish government. He should have calculated the possible repercussions of his contacts during the visit and abstained from activities that were liable to undermine the independence and reliability of the ECtHR in the eyes of the Turkish public.
Perhaps he was falsely or insufficiently briefed by his advisors about the details and meanings of certain meetings to be realized in the context of this visit. Or he might have preferred to refuse some parts of the visit that was suggested by the Turkish national Judge Saadet Yüksel whose family has close ties with the Erdoğan government. In any case, these negligent or wrongful acts cannot be excused considering the damage inflicted on the Court, whose reputation, independence and neutrality are indispensable traits to be able to duly discharge its tasks.
As the abovementioned arguments suggest, Spano’s visit has yielded no positive outcome. On the contrary, it has been considered as another move from the Council of Europe to appease Turkey. This approach has so far obviously encouraged the Erdoğan government to remain disrespectful to the rule of law and to the independence of the judiciary. Dramatically, certain developments that took place even during and right after the visit of Spano confirm this fact as well. In this context, Mustafa Şentop, speaker of the Turkish Parliament, made a statement supporting the reintroduction of death penalty, dozens of Turkish lawyers were arrested on the ground of providing effective defense for suspects with alleged links to the Gulen Movement which has been blamed by the Turkish government for orchestrating the coup attempt in 2016, and 82 members of HDP including an incumbent mayor and former members of Parliament were detained as part of an investigation into the Kobani protests held all the way back in 2014 in Kurdish-majority provinces of Turkey.
In light of the abovementioned observations, it is evident that certain questions are yet to be answered by the ECtHR and by President Spano himself. Why did Spano ignore warnings of Turkish scholars about the inappropriateness of receiving an honorary doctorate from Istanbul University? How was the cost of the private contacts of Spano covered? Can Spano’s trip to Mardin be deemed compatible with the ethical requirements of judgeship at the ECtHR? Why did Spano have no contact with the opposition and civil society in Turkey while having talks with members of the ruling party at various levels? Does the receipt of an honorary doctorate from Istanbul University trigger impartiality concerns regarding the applications to the ECtHR by the academics who were dismissed by this university without any due process?
It is unavoidable that the Court and Spano must assess the adverse impacts of the visit and explore convenient ways to recover the damages suffered. Since the opportunity given to the member State to address violations initially at national level is being abused by authoritarian regimes, it may also be advisable that the Court adjusts its rigid approach regarding “the principle of subsidiarity and process-based review of the Convention”, which has been concisely conceptualized by Spano.
I hope the valuable insights which were probably obtained during this visit leads the Court to better comprehend the dire situation of human rights in Turkey. Likewise, it is desirable that the cases submitted by Turkish complainants are duly examined taking into account the current state of the Turkish judiciary and the challenges posed by the Erdoğan government.