Crossing the Very Fine Line between Justice and Vengeance: Massive Purges in the Aftermath of the Attempted Coup in Turkey

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.

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Al-Dulimi and Montana Management Inc. v. Switzerland: Norm conflict between UNSC Resolution and ECHR?

Guest post by Cedric De Koker, Phd Researcher, IRCP, Ghent University.

On 21 June 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) rendered its judgment in the case of Al-Dulimi and Montana Management Inc. v. Switzerland (no. 5809/08). At issue was a potential norm conflict between the obligations stemming from a United Nations Security Council (UNSC) Resolution and the protections offered by the European Convention on Human Rights (ECHR), a recurrent theme in the Strasbourg jurisprudence (see amongst others the Al Jedda and Nada-judgments).

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Baka v. Hungary: judicial independence at risk in Hungary’s new constitutional reality

By Pieter Cannoot, academic assistant and doctoral researcher of constitutional law (Ghent University)

On 23 June 2016 the Grand Chamber of the European Court of Human Rights held that Hungary violated the right of access to a court (article 6, §1 ECHR) and the freedom of expression (article 10 ECHR) of András Baka, the former President of the Hungarian Supreme Court (now: Kúria). Several constitutional and legislative reforms led to the early termination of Mr. Baka’s mandate, expelling the critical judge from the highest office in the Hungarian judiciary, without providing any possibility for judicial review. The judgement is only the latest episode in a series of worldwide condemnations of Hungary’s new constitutional and human rights reality.

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Neighbourly Murders* , Forced Forgetting and European Justice – Marguš v Croatia

This guest post was written by Carole Lyons, Law School, RGU, Scotland

On 27 May 2014, a Grand Chamber of the ECtHR, in Margus v Croatia, pronounced upon the contentious issue of the use of amnesties in post-conflict settings. The case concerned a Croatian army commander who had been convicted of several murders of civilians in 1991. He had benefited from an amnesty in relation to the murders in 1997 but in 2007 was convicted of war crimes. Just two months before Croatia became a signatory to the European Convention on Human Rights (ECHR) in November 1996, the Croatian Parliament had passed a Law on General Amnesty.[1] Under the provisions of the latter, immunity from prosecution was granted in relation to crimes committed during the war which took place between 1991 and 1995 after Croatia’s declaration of independence from the former Socialist Federal Republic of Yugoslavia. Continue reading

Lawyer-client confidentiality at risk following Strasbourg’s decision in Öcalan v. Turkey

This guest post was written by Daniel Machover, Charles Kuhn and Christopher Honnery, respectively Head of the Civil Litigation Department, In-house Criminal and Regulatory Barrister, and Legal Researcher at Hickman and Rose.

 

The European Court of Human Rights’ (“ECtHR”) Chamber judgment in the case of Öcalan v. Turkey (No. 2) does nothing to further the debate on lawyer-client privilege. The ECtHR missed an important opportunity to confine the creeping interference with privilege that has characterised the post 9/11 world.

This decision was eagerly awaited in the UK because of the unsatisfactory framework left by the 2009 House of Lords decision in a Northern Irish case, In Re McE. In that instance an Irish solicitor, Manmohan Sandhu, had been convicted after security forces secretly recorded him inciting paramilitary clients to commit murder. A number of terrorist suspects subsequently sought assurances that their legal meetings were not subject to surveillance. The House of Lords ruled that the Regulation of Investigatory Powers Act 2000 (‘RIPA’) permits the RIPA Code of Practice on Covert Surveillance to authorise surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the Convention. They rejected arguments that the express terms of the Police and Criminal Evidence Act 1984 (PACE), as well as the common law on privilege, prevented electronic surveillance of privileged conversations. Since then there has been an amendment to RIPA to clarify that such surveillance must be judge authorised, and an amendment to the Code of Practice to clarify that it is justified only to prevent threat to national security “or to life and limb” – a criterion so loose as to be nearly meaningless.

In reaching its decision the House of Lords reviewed European case law but omitting consideration of S and Marper v UK, where the ECtHR had elaborated the limits to the state’s margin of appreciation and defined very clearly the need for proportionality in Article 8 cases. A number of commentators have opined that the European Court was unlikely to overturn the principle set out In Re McE but that it could – and should – clarify the proportionality question which the House of Lords had left unanswered. The case of Öcalan v Turkey was an opportunity to do just that.

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El Haski v. Belgium: Continued Debate on the (In)admissibility of Evidence Obtained through Ill-treatment

Earlier this week, the European Court of Human Rights released its judgment in El Haski v. Belgium, a case on the admissibility at a criminal trial of evidence potentially obtained through ill-treatment of third persons in a third State (Morocco). The ECtHR ruled that the Belgian authorities should have excluded the evidence from the trial. The applicant, who had been convicted for his membership of a terrorist organisation (le groupe islamique combattant marocain; GICM), was granted € 5,000 compensation. The Belgian media quickly picked up on the judgment. Headlines titled “Terrorist receives compensation” and comments referred to “growing criticism” of the European Court “in most Western European countries, including Belgium”, “because Strasbourg systematically exceeds its competences”.

In this post I will first attempt to place the judgment in the wider case law of the Court on the admissibility of evidence obtained through violations of art. 3. I will return to the assessment of the case in the Belgian media at the end of the post.

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The ‘significant disadvantage’ in a ‘20 million case’

In a recent case the Court used the ‘significant disadvantage’ criterion to declare a complaint inadmissible. In Liga Portuguesa de Futebol Profissional v. Portugal the Court made a clear distinction between the human rights issue at stake and the case at large (which concerned 20 million euros). Continue reading