Human rights defenders and advocacy groups have been quietly lobbying European governments to bring an inter-state lawsuit against Turkey at the European Court of Human Rights (ECtHR) over human rights violations on a mass scale, Nordic Monitor has learned.
The proposed move is seen as a way of pressuring the government of President Recep Tayyip Erdoğan over an unprecedented crackdown on civil society, unions, the free press and opposition political parties. The suspension of the rule of law coupled with the blatant abuse of the criminal justice system for political gains by the government has led to major human rights violations that have resulted in the imprisonment of tens of thousands of people in recent years including 235 journalists, putting Turkey on the map as the world’s worst jailer of journalists.
The government has investigated millions of people on dubious allegations of terrorism and purged some 150,000 people from public service including thousands of prosecutors, judges and academics. The unprecedented witch-hunt is seen as a total transformation of Turkey from a parliamentary and secular democracy to authoritarian Islamist governance with no rule of law, no due process and no checks and balances among institutions.
The unlawful arrests, asset seizures, widespread torture and ill-treatment can only be compared to the military coup eras of 1980 and 1982 during which people were arrested in large numbers without any due process or fair trial protections. In fact, the Erdoğan government’s record dwarfs what was seen back in the 1980s in terms of the number of people who have been persecuted as well as the extent and scope of the crackdown, which has affected all segments of society.
Based on precedent and case law at the European rights court, there may very well be a solid base from which to launch an inter-governmental complaint against the Erdoğan government, one that proves effective in putting the country back on track in line with its commitments and obligations under international conventions.
Here is what happened in the early 1980s when a suit was brought against Turkey:
Alarmed by the rights violations in Turkey in 1982, five European countries brought an intergovernmental lawsuit against Turkey. The applications were lodged by France (No. 9940/82), Norway (No. 9941/82), Denmark (No. 9942/82), Sweden (No. 9943/82) and the Netherlands (No. 9944/82) on July 1, 1982 under Article 24 of the European Convention on Human Rights (ECHR) for the Protection of Human Rights and Fundamental Freedom. On Dec. 6, 1983 the European Commission on Human Rights, following written and oral proceedings, declared the applications admissible.
The European Commission on Human Rights was abolished in 1988 when the Strasbourg rights court was enlarged and allowed individuals to take cases directly to the court.
Turkey caved to the pressure and reached a friendly settlement in the case. On Dec. 7, 1985 the commission adopted its report, acknowledging the settlement in accordance with Article 30 of the convention.
However, it took three years of negotiations between the European governments and Turkey to reach a settlement that paved the way for restoring democracy and changing the policies and implementations that led to the human rights violations. In the meantime, the commission continued to investigate the allegations against Turkey.
The applicant countries claimed that Turkey had breached Article 3 of the convention in that detainees were tortured or subjected to inhuman or degrading treatment and that such cases constituted a widespread and systematic practice; Articles. 5 and 6 of the convention with regard to detention and criminal proceedings under martial law; and Articles. 9, 10 and 11 of the convention with regard to restrictions on political parties, trade unions and the press. The cases involved events between Sept. 12, 1980 and July 1, 1982.
More specifically, with respect to Articles. 9, 10 and 11 of the convention, the five European countries argued that political activities were drastically curtailed, the activities of all political parties were prohibited and their leaders were detained. The activities of trade union confederations were suspended, trustees were appointed to take over their properties and several thousand trade union members were arrested for offenses against the state. The military had the power to prohibit publications, and provisions concerning censorship were introduced into the law. Numerous journalists and intellectuals were arrested on charges of crimes of opinion. Similar restrictions were put on the freedoms of peaceful assembly and association.
Under Articles 5 and 6 of the convention, the five European nations submitted that appeals against decisions of the National Security Council to the Constitutional Court were prohibited and that the competence of the Martial Law Courts was extended to the detriment of ordinary courts. Frequent and extensive use was made under then-Articles 140, 141, 142 (crimes of opinion) and Article 146 (high treason) of the Penal Code as a basis for wide and sweeping criminal charges.
They also alleged that Article 5 was violated when the government allowed the arrest and detention of a person for as long as 45 days under the exclusive responsibility of the martial law commander without any judicial control of lawfulness and by prohibiting any appeal against administrative decisions taken by the martial law commanders in the exercise of their duties.
They cited 10 reports from nongovernmental missions to Turkey which highlighted that the right of defense of accused persons was not respected. In particular accused persons were sometimes unaware of the charges against them; there was a practice whereby accused persons were asked to sign the minutes of their interrogation without having been informed of the content of the minutes; defense lawyers were frequently unaware of the charges against their clients and did not have access to the complete case file; defense lawyers were frequently intimidated and arrested; and the right to free communication between the accused and his lawyer was restricted to a considerable extent in some cases.
Under Article 3 of the convention the applicant countries alleged that detainees were tortured or subjected to inhuman or degrading treatment. Evidence shows that such cases were not merely isolated incidents or exceptions, but a widespread and systematic practice. They claimed that the measures taken by the Turkish government to combat torture and maltreatment were not sufficient. They argued that, under the convention, member state authorities are strictly liable for the conduct of their subordinates and that it is inconceivable that the higher authorities would be unaware of the existence of such a practice.
Although the Turkish government gave notice to the Council of Europe under Article 15 of the convention, stating that it would derogate the convention under a public emergency threatening the life of the nation, the five European nations argued that the legislation, administrative measures and practices went beyond what was strictly required by the exigencies of the situation. They said the right of derogation could not be invoked as a justification for violations of fundamental human rights. They also submitted that Turkey did not comply with its obligation under Article 15 to keep the secretary-general of the Council of Europe fully informed of the measures taken and the reasons therefor.
Turkey challenged these allegations, justified the crackdown under security pretexts and denied that practice of torture or ill treatment of prisoners existed.
On July 1, 1982 the commission invited Turkey to submit written observations on the admissibility of the applications, and the Turkish government responded on Jan. 31, 1983. That triggered a response by applicant countries which also prompted a fresh response from the Turkish side between April and August 1983. After an oral hearing for the complaint in December 1983, the commission agreed that the case against Turkey was admissible.
In June 1884, the commission heard 12 witnesses produced by the complainant states, although Turkey did not attend the hearing. But feeling the heat from Europe, Turkey started to make some changes. Not only was an election held in 1983, but also the National Security Council was dissolved, with the Turkish delegation claiming that a democratic restoration was in progress. Turkish representatives emphasized that the legislation was again subject to the authority of the elected Turkish Parliament and that most of the laws and decrees which formed the basis of the applications were no longer in force.
After Turkey signalled that it would make the necessary changes to comply with the convention in both written and verbal messages to the commission in May 1984, the five applicant countries expressed their views in July 1984 on what basic elements should be included in a friendly settlement. The terms of the settlement were sent to Turkey by the commission. In an October 1984 meeting with commission members, Turkey agreed to the conditions laid down by the five European countries as a starting base for further negotiations.
In a meeting arranged by the commission between the two sides in November 1984, the Turkish government came forward with its own proposal for a settlement, but the five European countries did not budge from their original position. Turkey invited the commission to send a delegation on a fact-finding mission with a view that it could help settle the case. The delegation visited Turkey between Jan. 27 and Feb. 2, 1985 and had discussions with the minister of justice, lawmakers, judges and government officials.
Back-and-forth negotiations on a friendly settlement between Turkey and the five European nations had dragged on throughout the year until both sides declared that they had reached a compromise in December 1985. The terms of the settlement required that Turkey take a number of steps to the satisfaction to the Council of Europe under convention obligations. Turkey agreed to enforce fundamental rights under Article 3 in detention houses, prisons and police headquarters; report regularly on the progress of conditions and procedures of detention to the commission; and hold discussions with the commission on reports filed by Turkey for which Ankara asked that the comments be kept confidential. A final report was to be prepared on the outcome no later than Feb. 1, 1987.
On Article 15 of the convention, Turkey agreed to limit the usage of martial law and revise and/or revoke a number of decrees or other legal enactments that were subject to complaint by the five European countries. Ankara also stated that it had been working on the granting of amnesty, pardons or similar measures of leniency for victims.
Human rights defenders hope that similar intergovernmental complaints that could be filed by multiple member states against Turkey can help restore the rule of law and fundamental human rights and freedoms. It can help secure the release of tens of thousands of political prisoners as well. It is not clear whether any European government, alone or in partnership with other countries, is willing to lodge an inter-state complaint against Turkey. Some experts Nordic Monitor has talked to say this is a real possibility, while others say national interests, business and trade ties may very well trump the concerns on fundamental human rights in Turkey.
Intergovernmental lawsuits before the ECtHR are not often used as a remedy but certainly are not unprecedented. Austria filed a complaint against Italy in 1960, Denmark and Sweden filed an application against Greece in 1967, Ireland filed two cases against the UK in 1971 and 1972. In recent years, Ukraine filed four cases against Russia over events in Crimea and Eastern Ukraine, and Slovenia lodged a complaint against Croatia.
Most allegations that gave rise to the five European countries suing Turkey in 1982 are very much prevalent today, and Turkey has been grossly violating many articles of the convention according to the track record of the Erdoğan government in recent years.
