ECtHR Cases Nr. 16538/17 and Nr. 13237/17A good approach or missed opportunity? (Part II)
Mis à jour : 14 oct. 2020
Written by Korbinian Zellner
This is the second part of Korbinian's article, to read the first click here.
In light of the ongoing debate about the accession of Turkey to the EU, there are multiple factors to be kept in mind, among which also violations of Human Rights play an important role, which is why Turkey acceded the ECHR.
Given that Turkey is one of the "founding signatories" of the ECHR in 1950, it seems somewhat logical that the state already dealt multiple times with the ECtHR. Actually, when examining the exact number of judgments of the ECtHR in the time span from 1959 to 2017, it shows that a total of 3.386 judgments were made against Turkey, securing Turkey both first place as well as a rather low reputation in the field of Human Right violations.
Only recently- in 2016- Turkey triggered indignation by making use of Article 15 ECHR and thus derogating the ECHR. In light of this situation, the ECtHR had to decide, whether the imprisonment of two journalists in 2018 has posed a violation of human rights, causing the problem whether the ECHR should be applied, despite Turkey’s proclaimed derogation of the Charter. Furthermore the question arose, why the court did not use the cases to discuss further unanswered issues concerning the derogation procedure.
Having already summarized and discussed the legal approach of the ECtHR in the first part of this article, in this part it will turn out that the court leaves a few topics, namely if there is still an ongoing emergency situation in Turkey (a criteria to take into account to uphold a derogation of art. 15 ECHR), and whether the State was allowed to keep on using Article 15 ECHR, undiscussed.
Here, l will give my opinion on whether the ECtHR should have approached named topics.
I. Exhaustion of domestic legal remedies
As long as legal remedies at national level are deemed to be effective to dispose of a violation and have suspensory effect (Sahin Alpay, 116f), they must be exploited before a complaint can be lodged with the ECtHR. Undoubtedly this admissibility criterion makes perfect sense in general, given both the states´ duty to provide national judicial review (Augenstein, 2011), as well as the considerable number of cases before the ECtHR.
However, it is probably as unquestionable that the ongoing detention in combination with the refusal to comply with the Turkish Constitutional Court, raises serious doubts as to the effectiveness of a new complaint to the Turkish Constitutional Court (Sahin Alpay, 116f).
Though being aware of this issue the ECtHR, upholding previous case law, considers the Turkish Constitutional Court as an effective appeal, arguing that “subsidiarity is the cornerstone of our system and requires domestic remedies to be exhausted.” (Annual report, 2017)
II. Unanswered questions
When it comes to interfering with national institutions, the ECtHR always finds itself on "thin ice", being referred to both too interfering and too repulsive.
While representatives of one side argue that national authorities are in principle better placed to decide both on the presence of an emergency and on the nature and scope of the derogations necessary to avert it (Sahin Alpay, 75); The ECtHR already stated that “states do not enjoy an unlimited discretion in that respect”(Sahin Alpay, 75).
While both sides provide excellent arguments for their respective claims, it is safe to assume that in the end a decision will highly depend on the case at hand.
Here the ECtHR was dealing with a legal system which's independence in put in question.
1. Existence of an actual emergency situation
While the Turkish Constitutional Court concluded that the attempted military coup had posed a severe threat to the life and existence of the nation, (Sahin Alpay, 77) there are more considerable sources. Firstly, the Commissioner for Human Rights, after visiting Turkey in April and September 2016, submitted that neither the attempted coup nor the dangers represented by terrorist organizations could justify measures entailing severe interference with media freedom, such as the measures at hand (Sahin Alpay, 159).
In addition, a Special Reporter and also internal non-governmental organizations reported that the national authorities were widely and arbitrarily suppressing freedom of expression through prosecutions and detention. (Sahin Alpay, 162)
Concluding, already as early as in 2016, thus shortly after the military coup, multiple sources reported that the derogation may have been misused to abuse fundamental rights. Especially in light of these findings it appears excessive to uphold the derogation for such a long period. One could argue that this alone shall be enough ground for the ECtHR to show more dominance and rule in a wider way. This applies in particular, as the court upholds its high admissibility criteria.
Additionally, given the rare use of Article 15 ECHR this would have been a seldom chance to establish case law and thus raising legal certainty.
From a political point of view, already other states opposed the actions of Turkey and even the UN wanted Turkey to end the derogation phase (DW, 2018), whereas the opinion of the ECtHR would have been important.
In light of the main task of the ECtHR, namely to establish an uniform level of fundamental rights protection, providing and creating legal certainty is amongst highest priorities. Given that there were clear indicators that there are breaches of fundamental rights taking place under the mantle of an emergency situation the court should have discussed whether there is in fact an emergency situation that justifies the derogation.
2. Transgression of time limit
In general, the same argumentation may be used regarding the question whether the time limit has not been exceeded.
Given that the main goal of each member of the ECHR is to establish uniform protection of fundamental rights, the derogation of the Charter should therefore be used only under in exceptional situations, posing a last resort.
Bearing that in mind, even when the use of Article 15 ECHR appears inevitable, the use should timewise be limited to a minimum (Cowell, 2013). Turkey expanded the time span to a total of about 21 months. An expansion like this should only be acceptable if the ongoing emergency keeps on justifying the derogation due to the endangering of the life of the nation. In particular, a state of emergency should not be abused to limit the freedoms of the ECHR more freely than necessary. Especially in a state of emergency, a state party must do everything necessary to protect the values of a society. Given that this here appears not to be the case it is necessary that the ECtHR checks if the time limit was exceeded.
Starting by giving an overview of the content and the legal decisions the court made, in the first part, I observed that the ECtHR, in my opinion, provided a good approach by arguing strongly based on the decision of the Turkish Constitutional Court, while giving further strong arguments.
Even if supporting and upholding the national decision regarding the violation of the ECHR has been evaluated as a good approach, this cannot be stated regarding answering further issues, as discussed in this segment. Bearing in mind the high requirements for admissibility the court upheld and the doubts of independence of the Constitutional Court, as well as the existence of little case law, the ECtHR here should have examined the manifest questions. This is further undermined by the opposing opinions of various parties regarding the situation in Turkey and the lack of evidence the Government brings forth in its favour.
In this regard the statement “states have no unlimited discretion” is not enough to ensure neither uniform fundamental rights protection nor legal certainty.
In the meantime, the state of emergency in Turkey ended. Nevertheless, the insecurity whether the use of Article 15 ECHR was appropriate or not remains. Even though Turkey was not the first state to derogate the ECHR during an emergency, the use of Article 15 ECHR remains fortunately very rare. If the ECtHR will get a second chance to establish “guidelines” for the use of Article 15 remains to be seen. Concluding, I consider the decision to be both, a good approach and a missed opportunity (for new development in this regard: Spencer, 2020).
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- Deutsche Welle (2018), Türkei muss Ausnahmezustand aufheben.
- Füglistaler Gabriel (2016), The Principle of Subsidiarity and the Margin of Appreciation Doctrine in the European Court of Human Rights’ Post-2011 Jurisprudence
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- Judgment on the CASE OF ILGAR MAMMADOV v. AZERBAIJAN (Application no. 15172/13) of the 22.05.2014
- Judgment on the CASE OF MEHMET HASAN ALTAN v. TURKEY(Application no. 13237/17) of the 20.03.2018
- Judgment on the CASE OF ŞAHİN ALPAY v. TURKEY (Application no. 16538/17) of the 20.03.2018
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