The Council of Europe must step up to tackle Turkey

While Turkey has quickly climbed to the top of the chart as the worst violator of rights in Europe under its autocratic Islamist leader, Recep Tayyip Erdoğan, the Council of Europe, a 47-member body that champions rights, the rule of law and democratic principles on the old continent, appears to have been rendered ineffective in making any positive difference in its member-state.

Today Turkey is the jailer of 175 journalists with some additional 80 facing arrest if they return home, a number that is much higher than the total combined figure of all 47 member-states of the CoE. Turkey notoriously leads the pack by a wide margin in the number of media freedom alerts on the CoE’s website, the Platform for the Protection of Journalism and Safety of Journalists. The crackdown is not just limited to media professionals but also includes tens of thousands of judges, prosecutors, union members, teachers, doctors and NGO staff members who were arbitrarily arrested on trumped-up charges.

It is time for this largest intergovernmental body in Europe to take a strong stand against Erdoğan’s Turkey and move beyond merely issuing statements of concern over an escalating crackdown on real and perceived critics, opponents and dissidents. The CoE must vigorously enforce convention powers with regard to Turkey including member-states’ commitments under the European Convention on Human Rights (ECHR) and defend the rights and freedoms of 80 million Turks or face undermining its own credibility.

Perhaps the first order of business is to place Turkey under close monitoring to track its democratic backslide, identify areas of shortcoming, and name and shame Erdoğan’s rule.

In fact, there are more reasons today to put Turkey under a Council of Europe monitoring process than in the period between 1996 and 2004, during which Turkey had been subjected to monitoring because of shortcomings in its compliance with statutory obligations such as maintaining a pluralist democracy and observing the rule of law and human rights, arising from Article 3 of the convention. There are growing voices in the Parliamentary Assembly of the Council of Europe calling for such an action to send a chilling message to Erdoğan.

Why bother playing for time and appeasing Turkey’s autocrat in the name of engagement when Erdoğan has clearly demonstrated his total disregard for European values? The CoE’s long-serving Secretary-General Thorbjorn Jagland will surely have a tainted legacy for allowing a member-state to backslide on rights and freedoms as he tries to work with Erdoğan with no positive outcome thus far. This avalanche of violations is not just limited to the territory of Turkey but is now in fact spilling over to other CoE member-states because Erdoğan has exported his witch-hunt of persecution to other European nations by putting his clandestine parallel networks and intel agencies at work on foreign soil.

There is already a considerable outcry among the institutions of the CoE when it comes to Turkey. The CoE’s Commissioner for Human Rights Nils Muižnieks has repeatedly called on Turkey to end emergency rule, release journalists, halt the closure of media outlets, associations and private companies, and end the transfer of their assets to the Treasury. The CoE’s Consultative Council of European Judges (CCJE) decried the jailing and sacking of thousands of judges without due process or any hard evidence and called on Turkey to safeguard the independence of the judiciary in a transparent manner. The Consultative Council of European Prosecutors (CCPE) also followed the suit about the imprisonment of thousands of prosecutors and described the massive purge of prosecutors as “far from the expected democratic attitude of a member state of the CoE.”

The sternest warning came from the CoE’s expert body on legal and constitutional affairs, the Venice Commission, last week. The commission said the collective dismissals did not refer to verifiable evidence; highlighted the speed of the purge, which gave the impression that the long lists of dismissals “were not accompanied even by a minimum of procedural safeguards”; and underlined that the current method leads to “a strong appearance of arbitrariness.”

The commission also dealt with the question of Erdoğan’s alleged claim of Gülenists being behind a failed coup and said such a connection has been too “loosely defined and did not require a meaningful connection with such organizations,” which may reasonably cast doubt in the loyalty of public servants. It further noted that even assuming that some members of the Gülenist network participated in the failed coup, that should not be used to extend criminal and disciplinary liability to all those who had some contact with the network in the past.

The CoE’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) carried out an ad hoc visit to Turkey in August and September of this year to investigate claims of rampant torture in detention centers and prisons in Turkey. Although a leaked confidential document suggested that the Turkish government alerted all holding centers and prisons to remove traces of torture before the visit, the CPT nevertheless found a pattern of torture and documented it. Now the Turkish government is blocking the report from being published.

The most important leverage the CoE has against Turkey is the exercise of its legal jurisdiction via the Strasbourg-based European Court of Human Rights (ECtHR). The court proved itself to have made a difference in the past in nudging Turkey in the right direction by adjudicating cases where Turkey was found to be in violation of ECHR articles. Turkey had to make serious legislative and judicial changes before dropping from the top of the chart as the heaviest violator of rights in the convention. It may be too early to conclude this, but the court appears to be less willing to challenge the Turkish government this time around. Two early cases from the massive witch-hunt in Turkey were thrown out by the court because the complainants had not exhausted domestic remedies.

There are strong special circumstances for waiving this requirement with regard to Turkey, a country where the rule of law has been replaced by the one-man rule of Erdoğan. The individual right to appeal to the Constitutional Court on rights violations remains only on paper when the court itself could not protect two of its leading members from arbitrary arrest by the Erdoğan regime in the aftermath of the abortive coup on July 15. When the opposition challenged the constitutionality of government decrees that effectively sidelined the legislative branch, the Constitutional Court simply toed the line with Erdoğan. The administrative courts in Turkey refused to adjudicate cases of unlawful dismissal of public employees en masse, fearing the wrath of the dictator.

Yet, in its decision in the case of Zihni v. Turkey, the European rights court declared the application by public school teacher Akif Zihni, who was purged by the government along with some 110,000 civil servants, as inadmissible on the grounds that he did not exhaust domestic remedies. It followed upon an earlier case where a Turkish judge, Zeynep Mercan, filed an unsuccessful complaint with the ECtHR after she was dismissed and arrested on false charges in Turkey. The European court again cited non-exhaustion of domestic remedies in rejecting her plea. Many believe the court erred in these judgments because there are obviously special conditions in Turkey that could very well lead the court to waive this requirement.

When 50,000 from all walks of life including doctors, union workers, teachers, business owners and even housewives were arbitrarily arrested and 110,000 were dismissed without benefits or compensation from government jobs, what more should we seek to satisfy the special conditions criterion? When all international press freedom advocacy groups condemn Turkey as the worst jailer of journalists, not just in Europe but worldwide, what other indicator does the ECtHR need to deem Turkey a special case? Perhaps the court is simply buying a time for itself as it knows most of these cases will eventually end up in its lap for judgment. In the meantime, however, millions in Turkey continue to suffer under the oppressive regime of an Islamist autocrat.

Perhaps it is rather naive to not recognize the bitter fact that domestic remedies purportedly available to victims in Turkey are no longer effective and certainly not in accordance with the due process of law. There is no obligation in international law to exhaust domestic remedies where those purported remedies are obviously futile. Even finding a lawyer to represent cases of government critics in criminal prosecutions is mission impossible given the fact that many lawyers and human rights defenders are themselves jailed in Turkey. I personally know a case of an editor-in-chief of a national daily who could not locate a lawyer willing to take his case. The fear factor is rampant in Turkey’s judicial system, where judges and prosecutors are terrified to render judgments not to the liking of Erdoğan and his associates.

Moreover, by throwing the ball to the national courts in Turkey rather than tackling pressing issues head-on with landmark pilot judgments, the European court has in a way provided the respect and legitimacy Erdoğan is desperately seeking to justify his massive and unprecedented persecution of millions of people in Turkey in the 21st century. It feels like the principle of “ex injuria ius non oritur” — which says that acts that are contrary to international law cannot become a source of legal rights for the wrongdoer – was violated here. Let’s hope the ECtHR will take a different approach on pending applications.

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