German lawyers criticize ECtHR’s rejection of applications from Turkey

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DAV Chief Ulrich Schellenberg

The German Bar Association (DAV) has criticized the European Court of Human Rights (ECtHR), which rejected applications concerning post-coup worker purges in Turkey on the grounds that domestic remedies had not been exhausted, Deutsche Welle reported on Sunday.

According to the report, DAV asked the ECtHR to ease the legal conditions necessary to accept applications from Turkey.

DAV Chief Ulrich Schellenberg, who criticized the rejection of applications from Turkey, said there was no working state of law in Turkey and that Turkey could not be compared with other European countries in terms state of law principles. Schellenberg added that the condition of exhausting domestic remedies had to be considered in a different light if one-third of judges and prosecutors were arrested in a short period of time and free advocacy could not be conducted due to oppression in a country.

A ruling by the ECtHR on last Monday turned down an application by a fired Turkish teacher on the grounds that he had not yet exhausted all domestic remedies. The European court referred to a commission that was announced by the Turkish government to review situations of state workers who have been dismissed by government decrees following a failed coup attempt on July 15, 2016, as a means of solution for Gökhan Köksal, a Turkish primary school teacher who had submitted a petition for the court to hear his case.

“That legislation provided for the setting-up of a commission with the task, in particular, of adjudicating upon appeals against measures adopted directly by legislative decrees issued in the context of the state of emergency, including the dismissals of civil servants. The decisions taken by the commission could then be appealed against before the administrative courts, whose decisions in turn could be challenged before the Constitutional Court by individual petition,” said the European court in its decision.

Following an application to the Constitutional Court and a ruling by that court, anyone could, if necessary, file with the ECtHR a complaint based on the European Convention on Human Rights, added the court.

Köksal, who was a teacher at the 1071 Malazgirt Primary School in the eastern province of Erzurum, was expelled from his post along with 50,000 other civil servants by a government decree issued on Sept. 1, 2016.

The expelled civil servants were regarded as belonging to, affiliated with or related to terrorist organizations or to organizations, structures or groups that had been found by the National Security Council (MGK) to engage in activities harmful to the state.

Köksal lodged the application with the ECtHR on Nov. 4, 2016.

Relying on Article 6 of the European Convention on Human Rights, Köksal complained of a violation of his right of access to a court, his right to be presumed innocent and his right to be informed promptly of the accusation against him. Relying on Article 7 (no punishment without law), he complained that he had been dismissed on the basis of acts that did not constitute an offense at the time they were committed.

Köksal also argued that he sustained breaches of his rights and freedoms under Articles 8 (right to respect for private and family life), 10 (freedom of expression), 11 (freedom of assembly and association), 13 (right to an effective remedy) and 14 (prohibition of discrimination).

In its decision, which was made public last Monday, the ECtHR unanimously declared Köksal’s application inadmissible on the grounds that he did not exhaust domestic remedies, finding that Köksal had to use the remedy provided for under legislative decree no. 685.

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