For many years, judges and prosecutors have been unduly detained in Turkey, under the alleged pretext of being members of – or supported – armed terrorist organisations. The Turkish judiciary has been persistently disappointing their hope of a fair trial, which is unsurprising due to the fact that the Turkish judiciary is fully dependent on the Turkish President.
Many of our Turkish colleagues have long been expecting their liberation from this nightmare, or at least to get an affirmation from the highest European human rights guardian about the truth of what happened and how the violation of arbitrary detention took place.
After a lengthy period, the ECtHR formed many groups of cases concerning the applications of Turkish judges and prosecutors. MEDEL requested to intervene as third party in several groups of cases concerning judges and prosecutors, with the aim to provide the Court with additional evidence that the independence of the judiciary in Turkey ceased to exist, a fact MEDEL considered essential for the correct decision of the concerned cases. The Court rejected the requests, considering them not to be “in the interest of the proper administration of justice”, decisions MEDEL interpreted as a clear sign that the Court was already sufficiently informed about the situation of the judiciary in Turkey.
On the joint cases Turan and Others v. Turkey (Application nos. 75805/16 and 426 others), the Court finally rendered its judgment on 23 November 2021.
This was the first time in the history of the Court that a Chamber examined jointly the complaints of 427 judges and prosecutors – a protected group under the Convention, due to their special role as the ‘guarantors of justice’ in society – resulting from their detention.
The Court rightly – and in line with its three precedent judgements – held that the Turkish judiciary’s interpretation of the notion of in flagrante delicto was unlawful and unreasonable and therefore breached the principles of legal certainty required under Article 5 § 1 of the European Convention. The Chamber thus reiterated its stance vis-à-vis the persistent unreasonable approach pursued by the Turkish Constitutional Court and the Court of Cassation by challenging and defying the ECtHR’s precedent case-law on this matter.
However, despite its finding that our colleagues’ procedural safeguards were disregarded, the Chamber denied the examination of all remaining core complaints of the applicants – under almost all sub-paragraphs of Article 5 of the Convention.
MEDEL has repeatedly stated that mass arrests of judges and prosecutors in Turkey on bogus terrorism charges, in blatant violation of their procedural guarantees and in the absence of any reasonable doubt that they had committed the offences with which they were charged, destroyed the independence and impartiality of the judiciary. The present case was therefore a socially and politically sensitive one and demanded utmost care and scrutiny and more detailed guidance and consideration from the Court.
The Chamber, however, has considerably departed from the well-established case law of the Court without convincing reasoning. It renounced the examination of serious complaints duly brought by the applicants, mainly on the ground that the violations by the Turkish government of fundamental rights were of such systematic nature that the Court could not handle effectively all of the complaints.
By denying the examination of the entirety of the complaints of the applicants, the Chamber missed the opportunity of identifying the organized and unlawful actions pursued by the authorities in the arrest and detention of judges and prosecutors as part of a state policy of seizing control of judiciary by abusing the criminal and anti-terror laws.
MEDEL has no doubts that the Turan case met the criteria set out in Article 43 § 2 of the Convention and, by its nature and by the nature of its legal, social and political implications, was capable of having a serious impact on the extent and scope of the protection afforded by the Convention at European level. Therefore, MEDEL believes that the Court should have had at its enlarged formation, the Grand Chamber, another opportunity of giving further guidance or clearer principles that should be followed in handling of such large-scale applications in the future.
This was not the decision of the ECtHR, however, and the referral to the Grand Chamber was rejected on 4 April 2022.
The world is currently witnessing the bitter consequences of appeasement of autocratic moves in Europe. The expulsion of Russian Federation from the Council of Europe and the ECHR reminds us once again that the international courts and organisations should address timely and without any delay the matters which come under their jurisdiction, regardless of any other considerations.
The applicants had come to Strasbourg after they exhausted all remedies in terms of having their rights under Article 5 recognised, in order to secure a solution to their personal case and obtain a judicial decision on their individual claim. The Court should not have failed to provide such an answer to the applicants – that is, after all, the ECtHR’s raison d’être.
Instead of excluding from its examination the certain rights and guarantees protected by the Convention without solid reasoning, the Court should have worked out the effective ways not to potentially undermine its very role as a guardian of rights, especially in difficult situations as in the present case.
In this context, MEDEL shares the opinion of the dissenting vote of Judge Kuris, that “there is a risk that some may read this judgment, by which so many complaints of so many applicants have been denied examination, as a signal that a member State can escape responsibility for violating the Convention en masse, since the Court may be flooded with complaints against that State to such an extent that it becomes unable to cope with them and decides not to examine them. To be frank: if a regime decides to go rogue, it should do it in a big way. And if responsibility can be escaped by “doing it big”, why not give it a try?”.
MEDEL regrets the decision taken by the ECtHR and sees with great concern the consequences it may have to the authority of the Court.
MEDEL will continue to observe the developments in Turkey and the proceedings at the ECtHR and will not stop to support the unduly persecuted Turkish judges and prosecutors, whenever and wherever it will be necessary.
12 April 2022