August 16, 2022
Over the last couple of years, the European Court of Human Rights (‘the Court’) has been tasked to deal with an enormous amount of cases pertaining to the attempted Turkish coup in 2016. In fact, Turkey currently has the dubious honor of having the second-highest number of applications pending against it before the Court out of all Contracting Parties. This number amounts to 23.2% of the Court’s overall workload, a number currently only surpassed by the Russian Federation (see also this blogpost). Thousands of the cases pending against Turkey pertain to the failed coup (see para. 34 of Judge Kūris’s Partly Dissenting Opinion in Turan and Others v. Turkey). In a number of these, the Court has found violations of Art. 18, the Convention provision offering protection against the Contracting Parties abusing their power in order to pursue hidden (illegitimate) aims (see for instance the cases of Kavala v. Turkey or Selahattin Demirtaş v. Turkey (no. 2)). However, recently the Court has shown itself more reluctant to apply Art. 18 in cases relating to the coup. The recent judgment in the case of Taner Kılıç v. Turkey (no. 2) is indicative of this change in attitude too. This blogpost constitutes a critical analysis of the Court’s decreasing interest in Art. 18 (particularly in regards to cases against Turkey).
The applicant, Mr. Kılıç, was a human rights defender and one of the founders of the Turkish branch of Amnesty International. In June of 2017, his home and office were searched, following which he was arrested on account of allegations concerning his membership in an armed terrorist organization (i.e. FETÖ/PDY). A judge ordered to place the applicant in pre-trial detention on account of the applicant’s use of the ByLock messaging service, but also on account of a number of contextual elements, including his subscription to the Zaman newspaper (allegedly linked to FETÖ/PDY), the fact that his brother-in-law was an editor of said newspaper, and the fact that his children were schooled in institutions that allegedly had connections to FETÖ/PDY. This pre-trial detention was extended on several occasions. A second set of proceedings was subsequently initiated against the applicant, where the applicant was once again accused of being a member of an armed terrorist organization, but where the charges this time were substantiated by the applicant’s activities as a human rights defender. Eventually, the applicant was convicted of being a member of an armed terrorist organization and sentenced to six years and four months’ imprisonment. Further appeals were dismissed, although one action for damages was still pending at the time of the Strasbourg Court’s judgment.
The Court reviewed the case under Art. 5 §§1, 3, 4 and 5 and Art. 10. With respect to Art. 5, the Court began its review by distinguishing the case at hand from its Akgün judgment, where the Turkish government was found to have violated Art. 5 §§1, 3 and 4 for solely basing the applicant’s arrest and pre-trial detention on his alleged use of the ByLock messaging service; in contrast to the Akgün case, the evidence relied upon by the domestic authorities in the present case included more than just the use of the ByLock system (para. 104). However, the circumstantial evidence upon which the authorities had initially relied enjoyed a presumption of lawfulness, rendering them incapable of giving rise to reasonable suspicion that the facts held against the applicant constituted a criminal offence at the material time. Based on the contents of the records, the Court consequently noted that the use of the ByLock system was the determinate element relied upon by the authorities in substantiation of their charges. However, referring to its findings in Akgün, the Court stated that the sole use of an encrypted communication application could not in itself constitute a constituent element of a criminal offence – leaving an objective observer incapable of finding any elements that could reasonably convince them that a criminal offence had taken place (para. 106). What is more, several expert reports had already proven that Mr. Kılıç had never even made use of the ByLock system. These reports were only taken into account once, namely when the Istanbul Assize Court ordered for the applicant’s pre-trial detention to be terminated in January of 2018, ‘in light of the evidence’ (‘compte tenu de l’état des preuves’ – para. 36). However, on the exact same day, the applicant was taken into detention again, now based on a second set of criminal proceedings which the authorities had initiated against the applicant. With respect to the elements substantiating the allegations in these proceedings, the Court found that they amounted to nothing more than the peaceful exercise of the activities of a human rights defender under the Convention (para. 112), including organizing a ‘workshop’, participating in awareness-raising activities and communicating with others about protest activities. None of the elements relied upon by the authorities met the standard of ‘reasonable suspicion’, leading the Court to find a violation of Art. 5 §§1 and 3 with respect to the applicant’s detention, which was unlawful and arbitrary (paras. 116 and 120). The Court also found that the applicant had not had an effective remedy to obtain compensation for these violations, resulting in a violation of Art. 5 §5 as well (para. 128).
The Court then continued its review under Art. 10, where it noted that the pre-trial detention was directly linked to the applicant’s activities as a human rights defender and consequently could have a potentially ‘chilling effect’ (para. 144). In this respect, it noted that (members of) NGOs act as ‘watchdogs’ for the state of democracy in a Contracting Party, rendering the same principles as the ones governing the detention of journalists and media professionals applicable (para. 146). Considering that the second set of proceedings had explicitly been based on the applicant’s activities as a human rights defender, the Court ruled that the applicant’s pre-trial detention had amounted to an interference with Art. 10. In regards to the justification, the Court noted that it had previously been unable to find any reasonable suspicion capable of justifying the applicant’s pre-trial detention under Art. 5. Under Turkish criminal law, pre-trial detention was only possible when the existing facts gave rise to ‘strong suspicion’ that the suspect had committed the offence of which they were accused (para. 155). Given the lack of reasonable suspicion under Art. 5, the Court noted that, a fortiori, there had not been any strong suspicion either, so that the interference with the applicant’s freedom of expression could not be considered prescribed by law (para. 157).
The Court concluded its review with an assessment under Art. 18, where the applicant alleged that the deprivation of his liberty had been ordered for ulterior purposes, namely to silence human rights defenders and to paralyze civil society in Turkey. However, the Court noted that the applicant’s arguments were ‘intimately linked’ to his arguments under Arts. 5 and 10, which rendered the argument not a ‘fundamental aspect’ of the case. There was consequently no need for the Court to review the matter under Art. 18 (para. 168).
The fundamental aspect criterion in light of the non-autonomous role of Art. 18
The present case is not the first one where the Court has been asked to review a case against Turkey under Art. 18. Recently, the Court has displayed a variety of ways to engage with arguments under Art. 18 in regards to Turkey. Until now, it has established a hidden aim and consequently found a violation of Art. 18 in two cases, i.e. the Grand Chamber case of Selahattin Demirtaş v. Turkey (no. 2) and Kavala v. Turkey. In the cases of Sabuncu and Others, Şik (no. 2) and Ahmet Hüsrev Altan v. Turkey, the Court could not find a legitimate aim capable of justifying the contested measure, but could not identify a hidden aim either (see also critically Judge Kūris’s Partly Dissenting Opinions in Sabuncu and Ahmet Hüsrev Altan). Lastly, in a number of cases, including the more recent case of Ilker Deniz Yücel v. Turkey, the Court stated that it was ‘not necessary’ to review the case under Art. 18 (see also the Partly Dissenting Opinion of Judge Koskelo, joined by Judge Kūris in Ilker Deniz Yücel). The strategy applied in the present case, where the Court rejected the argument as ‘not a fundamental aspect of the case’, resembles the latter strategy greatly.
Up until now, the Court has not yet elaborated upon the meaning behind the ‘fundamental aspect’ criterion. In Merabishvili v. Georgia, the Court introduced this criterion by stating that it would only apply Art. 18 to cases where the contested measure did not ‘just’ fail to meet the requirements prescribed by the limitation clauses under the Convention; the authorities must have attempted to pursue a hidden aim with said measure, and the claim pertaining to the latter must constitute a fundamental aspect of the case (para. 291). The Court has never expressly clarified how it applies this criterion in practice, but its case law appears to indicate that the criterion requires the applicant to not have raised the argument concerning the hidden aim of the contested measure under another provision (see also this blogpost). The present case seems to corroborate this, since the Court stated that the argument raised under Art. 18 was ‘intimately linked’ to the ones raised under Arts. 5 and 10.
However, one can hardly call it surprising that the argument raised under Art. 18 resembles the argument raised under other provisions. In Kamma v. the Netherlands, the European Commission of Human Rights ruled that Art. 18 does not have an autonomous role, meaning that, similarly to Art. 14, it could only be invoked in conjunction with another article. The Court continues to abide by this reasoning. In a way, the fact that Art. 18 is a non-autonomous provision can be accounted for. Art. 18 in itself does not enshrine any substantive rights; it merely states that “[t]he restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” However, the aims in pursuit of which restrictions can be imposed onto the Convention rights are enumerated in the limitation clauses attached to their respective rights provisions – and not in Art. 18. The argument regarding the permissibility of the rights restriction imposed on a substantive right is therefore inherently linked to the argument regarding whether or not the restriction actually pursued the aim which the respondent government claimed it pursued. Understood from that perspective, the non-autonomous nature of Art. 18 is understandable – but it also makes the interpretation of the fundamental aspect criterion as applied by the Court in Taner Kılıç v. Turkey (no. 2) an insurmountable threshold. After all, both arguments are inherently related to one another. And yet, they are so different. As Judge Kūris once put it: ‘From a structural perspective, once a violation of the conjoining Article is found, the complaints under Article 18, which does not enshrine any substantive rights, necessarily raise a separate issue, because they cannot be subsumed by the complaints under other Articles’.[i] By insisting that Art. 18 can only be invoked in conjunction with other provisions and subsequently dismissing arguments raised under Art. 18 because they resemble the ones raised under the conjoining Articles too much, the Court has adopted an approach that essentially renders Art. 18 redundant. The provision that once was supposed to be one of the Convention’s most important tools to prevent democratic backsliding, now seems to have fallen victim to backsliding itself in terms of the protection it provides.
Direct evidence as a reason not to apply Art. 18
When we return to the case at hand, the Court ruled that it had already sufficiently considered the applicant’s position as a human rights defender under Arts. 5 and 10. Indeed, under Art. 10, the Court had already noted that the evidence which the authorities relied upon in the context of the second set of proceedings pertained to the applicant’s activities as a human rights defender. This amounted to an interference – and a violation – of Art. 10. However, this violation concerned the fact that the authorities had relied upon this evidence in justifying the applicant’s pre-trial detention – but the Court obviated the argument that the authorities appear to have explicitly admitted to pursuing a hidden aim by relying on these activities. The applicant was not charged with being a human rights defender; he was charged with membership in an armed terrorist organization, and in order to prove this the authorities relied on activities which enjoy protection under Art. 10. This was also pointed out by Judges Kūris and Koskelo in their Partially Dissenting Opinion annexed to the judgment.
In its pre-Merabishvili case law, the Court applied an incredibly high standard of proof by requiring the applicant to provide ‘direct evidence’ of the hidden aim, i.e. ‘evidence which itself documents that the government was pursuing ulterior motives’ (see Satzger et al, p. 256). Examples of this include the State signing an agreement where charges are dropped in exchange of the transfer of shares or authorities detaining an applicant on account of her disrespectful behavior toward a judge. Nowadays, the Court no longer explicitly distinguishes between direct and contextual evidence, but in other cases relating to Art. 18 it has attached considerable value to similar explicit admissions by government officials. For instance, in the cases of Rashad Hasanov and Others and Azizov and Novruzlu v. Azerbaijan, the Court took into account the fact that the applicants’ detentions were accompanied by statements by the Prosecutor General’s Office and the Ministry of National Security where they made it clear that they were explicitly targeting the NGO of which the applicants in these cases were members. With respect to Turkey, the Court has displayed a similar attitude in the case of Kavala v. Turkey – another case about the detention of a human rights defender in the context of the failed coup. There, the Court – just as it did in the present case – found that the evidence relied upon by the domestic authorities in order to substantiate the charges against a well-known human rights defender amounted to ‘facts which were largely related to the exercise of Convention rights’ (para. 157). The Court reached this conclusion in the context of its assessment under Art. 5 §§1 and 3 (the applicant did not rely on Art. 10 in this case), but when it turned its attention to Art. 18, it curiously found that the argument pertaining to the hidden aim had not yet been examined and therefore constituted a fundamental aspect of the case (para. 198). This reasoning is diametrically opposed to the one applied in the case of Taner Kılıç v. Turkey (no. 2). In the latter case, the fact that the domestic authorities had practically admitted to having pursued the hidden aim of silencing the applicant and paralyzing civil society sufficed to reject the Art. 18 argument – whereas it was an important reason to examine it in Kavala. In fact, in Kavala the Court referenced the inclusion of these acts in the bill of indictment multiple times throughout its assessment under Art. 18 (see paras. 220 and 223), even stating that these elements were ‘particularly relevant in the context of the present complaint’. In Taner Kılıç v. Turkey (no. 2), the status of direct evidence has apparently been downgraded from ‘particularly relevant’ to a reason not to apply Art. 18.
Regrettably, Taner Kılıç is not the only case against Turkey in which the Court (and more specifically the Chamber’s Second Section) has avoided having to review a case under Art. 18. In several of his (Partly) Dissenting Opinions, Judge Kūris has indicated that the Court has a tendency to swiftly brush off arguments raised under Art. 18 (particularly in cases against Turkey and Russia) by stating that it is ‘not necessary’ to examine the matter under this provision. The reasoning in these cases is remarkably similar; the Court finds a violation of one (or more) Article(s), but then states that ‘in this view’ it is ‘not necessary’ to examine the matter under Art. 18 – without even explicitly bringing this in relation to the fundamental aspect criterion. Compared to recent cases against Azerbaijan (Fifth Section) and Bulgaria (Fourth Section), where the Court found a violation of Art. 18 after it had previously found violations under the conjoining Articles too, this approach stands out – but in a negative way. Might there be a certain degree of reluctance on the Court’s part to apply Art. 18 to cases pertaining to the Turkish coup? Or is this shift in the application of Art. 18 indicative of a step backwards in regards to the protection against abuse of power that will eventually affect the cases against other Contracting Parties too?
Regardless, it is uncontestable that the disregard for Art. 18 prevents the Court from addressing an additional dimension to violations of the Convention. A violation of Art. 18 signifies a severe, structural deficiency in the protection of the rule of law in a Contracting Party. In light of recent developments on the European continent and beyond, this would be the time for the Court to strengthen its protection mechanisms in order to respond accordingly, and not lower their guard by interpreting the constituent elements of Art. 18 in a manner that renders them impossible to apply in practice. Let this blogpost therefore be a plea for the Court to not let Art. 18 have the status it had in its pre-Merabishvili period: a powerful tool in theory, but a useless one in practice.
[i] Egidijus Kuris, ‘‘Wrestling with the ‘Hidden Agenda’: Toward a Coherent Methodology for Article 18 Cases’ in K. Lemmens et al, Human Rights with a Human Touch. Liber Amicorum Paul Lemmens (Intersentia 2019) (539) 556.