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[OPINION] Impartiality of the ECtHR towards Gülenist victims

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By Faruk Ozcan

Turkey’s twin corruption investigations, the so-called Dec. 17-25 corruption scandal, revealed the fact that President Recep Tayyip Erdoğan and his AKP government, who once enjoyed the open support of the Gülen movement for its democratic, liberal and Western-oriented policies and seemed to be appreciative of this support, were in fact at odds with them.

Since then, Erdoğan and the government have launched a demonization campaign against the movement. As part of this campaign, the Gülen movement was labeled by the government at first as a “parallel state structure” and later a “terrorist organization.” “Parallel state structure” accusations have neither legal ground nor justification. The abstract National Security Council decisions, taken in this context, cannot have a direct legal impact.

However, public opinion has been molded against the Gülen movement by accusing them of full responsibility for the KCK, Ergenekon, Sledgehammer and military espionage investigations. Before the end of 2013, the movement had already been picked as a scapegoat for some questionable probes against separatist Kurds, ultranationalists, leftists and the army. The movement has also not been known to be in favor with nationalists. In this respect, the political opposition was entirely lined up against the Gülen movement.

In the aftermath of Dec. 17-25, the AKP government started a defamation campaign against the Gülen movement. The AKP represents the majority of Turkish constituents and has been ruling the country uninterruptedly for more than a decade.

While the defamation process was going on, the bureaucrats believed to be Gülenist were eliminated from prominent posts and arrested. A crackdown on supposedly Gülen movement-affiliated institutions, media outlets, educational institutions and business associations were all flagged and later all of them were shut down on the pretext of the coup attempt. It became apparent later on that an eradication scheme against the Gülen movement had been put into practice in line with a preconceived program.

Immediately after the failed coup attempt on July 15, 2016, the AKP government along with Erdoğan pinned the blame on the Gülen movement. Thereby, the project of rooting out the Gülen movement, which had been facing major setbacks in the ordinary legislative regime, has been reinvigorated thanks to the declared state of emergency. Thus, Gülenists, Gülen sympathizers, and anyone thought to be a Gülenist in government offices were eliminated. It is beyond doubt that the “lists to be eliminated” had been prepared beforehand. The witch hunt thus put into practice was unfortunately fully seconded by politicians and the society.

Consequently, the movement was demonized and made an object of hate. As the pro-Gülenist media outlets had already been exterminated beforehand, the representatives and volunteers of the movement did not have a chance to express or defend themselves in public. Even all social media outlets associated with the movement are banned. If they operated abroad, all access to these sites was prevented by the telecommunications authorities. Social media accounts with over a few thousand followers were blocked as well.

While this was happening, the overwhelming majority of politicians, academics, opinion leaders, intellectuals and columnists in Turkey lent their support, willingly or inadvertently, to Erdoğan’s social genocide project, and consequently, Turkish society lost its common sense. Hence, there was a very little reaction to the massive post-coup purges and detentions; even videos and photos clearly providing extensive torture went almost unnoticed.

All legal experts knew pretty well that statements extracted in the absence of a lawyer were to be considered illegal, let alone statements taken under torture or coercion. Nevertheless, testimonies made under torture were constantly broadcast on TV and published in newspapers and magazines, pronouncing the suspects guilty without due process and in total violation of their basic rights.

People were made to believe the one-sided and hateful propaganda of the Erdoğan regime against the Gülen movement in the absence of a dissenting voice under the state of the emergency regime. In the exploitation of emergency powers, thousands of unlawful practices were carried out through statutory decrees enacted by the government without parliamentary approval.

Grave human rights violations and highly controversial legal actions have become ordinary practice. Even very fundamental human rights have been violated and most of the time systematically disregarded.

There was one single overarching objective behind all this illegality: declaring the Gülen movement a terrorist organization. In spite of the purge of tens of thousands of army and police officers as well as hundreds of thousands of civilians, in this extremely depressing process there is no incidence of violence against the authorities, which rendered the allegations of terrorism totally baseless and unfounded.

Shortcomings of the relevant decisions of the ECtHR

When all this was occurring, the memorandum of the Council of Europe commissioner for human rights and the remarks of the Venice Commission regarding the measures of the state of emergency noted major irregularities and lawlessness in Turkey. Furthermore, many well-known international human rights NGOs also revealed the tragedy in Turkey in their reports.

Along with these developments, thousands of victims were waiting for a decision of the European Court of Human Rights (ECtHR) as a last resort. Unfortunately, the ECtHR scandalously rejected the application in its Zihni decision, adopted on Nov. 29, 2016. Following the coup attempt, in the first Decree no. 667, public administrative bodies had authorized the dismissal of public servants. However, having comprehended that the dismissal procedures were completely against the law, the government diabolically invented the method of dismissal by emergency decree in which the judiciary had no power to quash the dismissal measures by the administrative jurisdiction or the Constitutional Court. This deliberate preference meant the abolition of the rule of law.

Although the ECtHR was well aware of the local circumstances, it referred to an administrative judiciary decision that was not directly related to the applicant’s case, just to emphasize the accessibility of administrative jurisdiction bodies. Additionally, though it must be taken into consideration ex officio by the court, it did not even mention the related part of Article 45/3 of the Code on the Establishment and Rules of Procedure of the Constitutional Court that individual applications cannot be made directly against legislative transactions and regulatory administrative transactions.

Briefly, the ECtHR particularly chose and examined an appropriate application to draw the controversial conclusions of the decision in which allegations and claims were not adequately submitted. Most probably without asking for an observation from the parties, the court preferred to decide only according to the arguments in the application form and unfortunately, it let victims in Turkey down. Despite the fact that there was no such will in Turkey, if the ECtHR assumed the domestic authorities to be a remedy to address, at least the obvious thing to do was just to wait.

Being rightfully aware that it is not possible to cope with tens of thousands of potential applications, the ECtHR continued to maintain dialogue with the Turkish government through the officials of the CoE and expected the establishment of an ad hoc commission that will be tasked with correcting the unjust and unlawful decisions taken during the state of emergency (SoE).

The government, with its Decree no. 685, announced that it would establish a commission that will review the decisions taken during the SoE. As correcting mistakes is not the real aim of the government, it is highly likely that this will be no more than a sham commission.

The state of emergency, in which human rights standards are respected at a minimum level, will clearly not be suitable for the government to exploit its scope with decrees and the purge of tens of thousands of officials. As the putschists seemed to be limited to a small percentage among all purged officials, a SoE inquiry commission that is well functioning in accordance with human rights will have no other choice but to reinstate the rest of the purged officials who had nothing to the with the coup attempt.

According to the relevant Turkish legislation, being a member or having an affiliation with a religious group is certainly neither a crime nor a reason for being purged. Declaring that having a membership, affiliation or connection to the Gülen movement as an absolute ground for dismissal, the government intentionally granted the commission limited jurisdiction in order to prevent “undesired results.” It is obvious that the members of the commission who have been appointed after a meticulous adoption process that took four months will know their real sacred mission.

Despite this situation, the ECtHR has declared the application of Köksal inadmissible by pointing to the SoE inquiry commission. Can this commission be an effective remedy to compensate the grievances? It may be effective for the people who did not have any affiliation with the movement.

For instance, some officers who do not have any affiliation apparently may be returned to their duties and a portion of the society may be soothed. However, the commission will not ever be an effective remedy for the people who just appreciated the activities of the movement and did not commit any crime including the coup attempt.

It is clear that the commission will be regarded as an effective remedy by the ECtHR with its few sample decisions for allowing a small number of officers to return to their duties, yet it was indeed created to block the victims’ search for their rights and justice. Similarly, in the case of Judge Mercan, who was arrested after the failed coup, the ECtHR decided that an individual application to the Turkish Constitutional Court (TCC) was an effective remedy to be exhausted regarding the detention matters by referring to the TCC’s Dundar-Gul case.

However, considering the role of the Penal Peace Judgeships, which were opened for a specific mission, anyone could easily predict that there is no effective judicial remedy in Turkey for the release of police officers, judges and journalists who were somehow thought to be affiliated with the movement.

Thanks to the decision it took on Köksal’s application, the ECtHR called into question its reputation and prestige acquired over many years.

Impartiality of the ECtHR

How does the ECtHR function as the supreme guarantor of human rights yet take decisions the above, which are heavily criticized by Turkish public opinion?

First of all, Turkey has become one of the most highly contributing countries to the Council of Europe (CoE), and thanks to Turkey’s increasing contributions, some considerable positions of the CoE avoided closing down.

These types of trump cards might be used harshly as leverage by Erdoğan’s diplomats.

As for the ECtHR, the Zihni and Köksal decisions were taken by a seven-judge chamber. In several cases, the Grand Chamber did not uphold the assessment of the chambers. It should be borne in mind that as it was in the past, if this case was heard by the Grand Chamber, the 17-judge composition might have approached the problem very differently thanks to other top judges who would be more sensitive to human rights rather than a political agenda.

Taking into consideration the procedure of the court, the composition of the court always includes the “national judge” when it hears cases at the chamber or Grand Chamber level. The national judge is assumed to know the related national law best, and his or her opinion regarding technical matters has a decisive role.

Turkish national judge Işıl Karakaş has successfully performed her duties at ECtHR for nine years. There is no doubt about her competence in the field of international law, particularly human rights law. On the other hand, we must emphasize one point that makes her impartiality questionable when it comes to Köksal case.

Karakaş’s husband, Professor Eser Karakaş, a respected economist, is among hundreds of thousands of public servants who have been purged by statutory emergency decrees. Moreover, Işıl Karakaş is continuing to work at the ECtHR on a temporary basis after the end of her term because of the rejection by the CoE of the Turkish government’s nominees to replace her. This means that the Karakaş family will soon go back to Turkey and will be at the mercy of the arbitrary rulers of the country. Even if they choose to stay abroad, like many thousands, still they will not be immune to the government’s wrath.

In spite of Judge Karakaş’s individual and familial circumstances, the fact that Işıl Karakaş didn’t decide to withdraw from the Köksal case unavoidably casts a dark shadow over the impartiality of the decision taken by the ECHR.

It is useful to know the functioning and structure of the court as well as the role of national judges. Applications lodged against states with the ECtHR are initially handled by expert jurists in the relevant legal division, and the reports of these jurists give direction to the cases.

In comparison, jurists are like the central staff of a kitchen: National judges are the chef of this kitchen, and jurists have the opportunity to add more or less salt to the meal. A lot of Turkish jurists have been employed at the court in proportion to the number of cases against Turkey, and they have a significant role in the fate of these cases.

How independent and impartial are the said jurists and do they put their personal beliefs and thoughts aside while dealing with the cases? Primarily their “Turkish” character sufficiently gives an answer to this question. These jurists could be at most as neutral as a Turkish man is supposed to be. ECtHR rapporteurs do not live in an environment different from that of other Turkish lawyers, who were able to bring a case to shut down a political party before the supreme court by relying just on information collected from the Internet, resulting in the notorious “367 decision” on which even primary school children would not agree.

They come from a legal tradition that approves of the removal of headscarved litigants from the courtroom, nowadays getting judges enjoying highest legal guarantees to be arrested based on information on their private social sphere and establishing the presumption of criminality rather than the presumption of innocence as the principle.

We cannot consider that the majority of these jurists are free from Turkish ultra-seculars and radical political Islamists’ very well known heavy bias towards the Gülen movement. These judges are known to be carefully concealing their anti-Western and anti-liberal inclinations.

It should also be noted that those legal experts are functional to the extent of shifting the ECtHR’s priority policy for victims closer to their mindset/political ideology. The ECtHR has accepted that the individual application to the TCC is an effective domestic remedy to be exhausted for alleged Gülen movement “members” like Judge Mercan and many journalists, who have been in prison for last the last years.

On the other hand, the ECHR surprisingly/unexpectedly but fortunately decided to proceed with the case of journalists from the Cumhuriyet newspaper last week, without waiting for the result of their individual applications to the Constitutional Court. Giving priority to the cases of Turkish journalists is totally appropriate/acceptable/convenient, but we have the right to ask a legitimate question: Is a nine-month detention of some journalists considered a more severe human rights violation by the ECtHR than three years’ detention of judges and journalists who have been thought to be “members” of the Gülen movement? It seems that for the top European human rights court, some human beings are more human than others.

These jurists are very adept at finding violations from the details of the facts, particularly in borderline cases. Those who are curious will figure out what this means if they have a look at the Zengin, Akçam and Öcalan judgments. We have no objection to the outcome of these judgments. Undoubtedly, human rights standards should be upgraded and the convention should be interpreted broadly in this vein. The limits of the convention should be enforced if human rights are at stake as the ECtHR did when it wanted. At this point, the ECtHR jurists should answer the following questions: In Turkey, there are hundreds of thousands of people deprived of their rights and left to a civilian death. Shouldn’t their cases be prioritized? Shouldn’t these cases be treated with special sensitivity, bearing in mind the dire state of human rights in Turkey?

If the ECtHR wants to maintain its prestige and venerability and does not want to be associated and remembered for its “à la Turca” decisions, the secretariat should solemnly ponder and address the issue of impartiality. As a first step towards this end, the preliminary review of movement-related cases might be conducted by foreign rapporteurs whose objectivity and impartiality are not in question.

The ECtHR administration can easily come up with various solutions to address this grave and urgent issue if it sincerely wants to do so. Otherwise, we might have to wait until the moment Erdoğan’s dictatorial regime formally collapses together with its accomplices — both domestic and foreign — for justice to be served.

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