All hat, no cattle: 12 years of unfulfilled ‘mentality reform’ promises in Turkey

By Mümtaz Murat Kök, Media and Law Studies Association (MLSA)

On 11 July 2022, the European Court of Human Rights (ECtHR or the Court) ruled that Turkey failed to execute the Court’s judgment in the case of Kavala v. Turkey. In its history, this is the second time the court has ever conducted infringement proceedings against a member state since Mammadov v. Azerbaijan. Considering this situation, it would be an understatement to call Turkey's non-implementation of the judgments of the ECtHR simply a problem.

In their article, lawyers Tatiana Chernikova and Denis Shedov discuss the same predicament in Russia. Among the reasons for non implementation of the ECtHR’s judgments by Russia, the authors list the lack of a specific institution responsible for the implementation of the ECtHR’s judgments. Though Turkey and Russia may appear similar when it comes to the average time leading cases have been pending implementation, unlike Russia, Turkey does have a specific institution responsible for implementing the judgments of the European Court of Human Rights.

Foto credit: Filiz Gazi

Non-implementation as ‘sickness’, ‘mentality reform’ as cure

“The Department of Human Rights" was established within the Ministry of Justice by Executive Decree no. 650 dated 26 August 2011 and published in the Official Gazette to amend Article 13 of the Law No. 2992 on the Organization and Duties of the Ministry of Justice.  Among other things, the department has been tasked “to perform duties and procedures in the enforcement of the judgments of the Court finding violations against the Republic of Turkey.” Not long after, the department’s jurisdiction was extended through a protocol signed between the Ministry of Justice and the Ministry of Foreign Affairs on 14 November 2011. As per Article 5/1 of said protocol, the department has been entrusted with carrying out all procedures in the implementation of the judgments of the ECtHR.

In the press conference held after the signing of the protocol, the ministers, among others, answered to the question “Why are the judgments of the Court not implemented?” Then Foreign Minister Ahmet Davutoğlu acknowledged that Turkey’s record before the European Court of Human Rights is “a sign of sickness.” According to Davutoğlu, a systematic illness caused the ever increasing number of applications to the Court from Turkey. Following his diagnosis, the minister prescribed “procedural” and “mentality reform.” In terms of procedural reforms, he praised the protocol that had just been signed and added that “even legislative changes” may be considered if deemed necessary in the future. With the new protocol, so the minister claimed, the way to any such change had been opened as a preventative measure. In terms of “mentality reform”, Davutoğlu declared that henceforth, there would be no more excuses for the mistakes of previous governments which gave way to violations in the first place and against which the AKP government now still had to submit “defenses” in the course of the implementation process. Instead of “defending a wrong judicial decision,” the minister continued, Turkey would start “cleaning up its act” and consider “all kinds of alternatives” to decrease the number of applications before the court on matters of fundamental freedoms.

12 years after these bold statements, no signs of an actual mentality reform are in sight. On the contrary, not only does the current government defend the mistakes of the past, in practice they enthusiastically add up to them. The Oya Ataman Case, which is one of 133 leading cases pending implementation by Turkey, is a perfect example of this gangrenous reality.

The Oya Ataman Case

In 1997, the Ministry of Justice introduced a new project for the construction of “high security” prisons across Turkey. The government of the time claimed that these prisons, widely known as “F-Type prisons”, introduced more effective and more humane methods of prison administration. Several reports by human rights organizations (e.g. a report by the Turkish Medical Association) pointed out that these prisons, which rely on the isolation of political prisoners, are not compatible with human rights.

On 22 April 2000, eight months before the so-called “Operation Return to Life”, the Istanbul Branch of the Human Rights Association planned a press statement in Istanbul’s Sultanahmet Square in order to protest F-Type prisons. A group of 40 - 50 human rights defenders and activists arrived at the square around noon. They were immediately ordered by the police to disperse under the claim that they might “disrupt public order” at that busy time of the day. When the demonstrators refused to scatter, the police resorted to pepper spray and took 39 demonstrators into custody. Among those who were detained was lawyer Oya Ataman. After the Turkish authorities had refused to initiate proceedings against the police, he filed an application with the European Court of Human Rights in 2001.

On 5 December 2006, the European Court of Human Rights ruled that the intervention of the police to a peaceful demonstration violated the applicant’s freedom of assembly. In its judgment, the court granted that there may be regulations requiring prior notification about planned demonstrations to the authorities but also noted that these requirements must not serve as “a hidden obstacle to the freedom of peaceful assembly.” The court established that the interference with the applicant’s freedom of assembly was “prescribed by law”, namely Law no. 2911 on Demonstrations and Assemblies. However, being “struck by the authorities’ impatience in seeking to end the demonstration”, it found such interference unnecessary in a democratic society.

It is important to mention here that three years before the ECtHR’s judgment, an Istanbul court had sentenced 38 of the demonstrators of the event in question to 1 year 8 months in prison, in addition to 91 million Turkish Liras of judicial fine. The first instance court ruled not to suspend the prison sentences for three of the human rights defenders on the grounds that “they are incorrigible” and that they show no sign of remorse.

PHOTO credit: Hayri Tunç

The ECtHR’s judgment in the Oya Ataman Case has been pending implementation since 5 March 2007. In fact, Oya Ataman’s case has become the leading case of a group of cases concerning violations of the right to freedom of peaceful assembly, including the prosecution of participants in demonstrations and the use of excessive force to disperse peaceful demonstrations.

‘The problem is not the law, but it’s application’
Contrary to the statements made 12 years ago and in defiance of reality, in their latest Action Plan submitted to the Committee of Ministers on 16 January 2023, the authorities claimed that “the underlying reason for the violations at hand is the application of the law in practice rather than its substantive provisions.” Showing how far they have come from the statements made in 2011, the authorities even gave a  “warning” to the Committee: “considering that there is no deficiency in the Turkish legislation, the Government of Türkiye would like to note that insisting on a legislative amendment would lead to excess of power.”

The repetitive cases in this group and daily experiences prove what the Committee of Ministers has insistently stressed upon: the problem is the law. The very same legislation that was used to sentence human rights defenders who went to the Sultanahmet Square in 2000 to protest inhuman prisons is used against protestors today. In its latest submission to the Committee, the Media and Law Studies Association (MLSA), through data gathered by monitoring of freedom of assembly trials, has put forward how the Law itself (more specifically Articles 9, 10, 16, 17, 22, 23, 28-32) still gives way to violations. These articles, which are vaguely worded, allow interpretation contrary to the Convention standards and make it possible for the authorities to declare peaceful assemblies “illegal”, impose arbitrary bans and sentence individuals for attending peaceful demonstrations. The arbitrary restriction of freedom of assembly, MLSA argued, can be seen in the radically different attitude of the authorities towards the Saturday Mothers/People and the group called “the Defense of the Islamic Movement” both of which wanted to hold demonstrations in front the Çağlayan Courthouse in Istanbul. Article 22 of the Law no. 2911 stipulates that demonstrations in the vicinity of certain public buildings such as the parliament and courthouses are “forbidden.” In its submission, MLSA shared with the Committee that whereas Saturday Mothers who wished to make a press statement before the September 21st hearing of their trial, were violently dispersed by the police, the group called “the Defense of the Islamic Movement” who are also known for their hate campaigns against LGBTİ+ were allowed to hold a demonstration on 21 December 2022 despite the fact that they were chanting “Death to infidels!” In the eyes of the authorities, Saturday Mothers/People were a bigger threat to public order. Therefore we believe these submissions - which have been prepared with the input/support of EIN - are one of the ways to be a crucial instrument to contribute to the long-winded implementation process of ECtHR judgments.

Another way to support the implementation of the Court’s judgments is through strategic litigation. In addition to individual legal support, MLSA files lawsuits which serve not only to protect freedom of assembly but also journalists who record the violations of freedom of assembly. One such example is the General Directorate of Security’s circular published on 27 April 2021, which attempted to ban audio-visual recordings during public demonstrations. Reviewing the lawsuit filed by MLSA, the Council of State ruled to suspend the execution of the circular on the grounds that it violated Articles 7 (legislative power) and 13 (restriction of fundamental rights and freedoms) of the Constitution.

Final remarks

Especially since the Gezi Park Protests, freedom of assembly in Turkey is a freedom only selected groups are allowed to enjoy. The blanket bans imposed in Batman and Van or on Saturday Mothers who have been arbitrarily banned from gathering at the Galatasaray Square where they had gathered since 1995 to demand justice for their loved ones who have been forcibly disappeared, are all made possible by the Law no. 2911. It is clear that the Law no. 2911 needs to be amended. However, the amendment of the Law requires a profound mentality reform.

However, in a political climate in which the president himself repeatedly defied the Court’s judgments, it would be naive to expect such a reform. Emboldened by such actions of high level politicians as well as other member states which continue to undermine the Convention system, the authorities do not even bother to provide accurate statistics which would clearly demonstrate that the application of the law is not the problem. 

Therefore the Committee should insistently demand Turkey to amend the law and should supervise the implementation of the Court’s judgment in the Oya Ataman Case more frequently. Also important, the Committee should take individual examples such as Saturday Mothers into consideration and demand explanation on these symbolic cases. The ongoing legal harassment of Saturday Mothers as well as arbitrary restrictions imposed on them would provide the Committee with a crystal clear picture that Turkey is trending backwards with regards to freedom of assembly. 

The indignity of French prisons: Using ECtHR judgments as a lever for action

By Prune Missoffe, Head of Analyses and Advocacy, and Nicolas Ferran, Head of litigation, at the French section of the International Prison Observatory (OIP-SF)

Prune Missoffe, ©OIP-SF

Nicolas Ferran, ©OIP-SF

You can also find the original French version of this article here.

From the litigation campaign to the condemnation of France

Photo by Marco Chilese on Unsplash

In its judgment JMB and others v. France of 30 January 2020, the European Court of Human Rights (ECHR) condemned France on the basis of Article 3 of the European Convention because of the indignity of its prisons. Noting that "the occupancy rates of the prisons concerned reveal the existence of a structural problem", it ordered the national authorities to adopt general measures to guarantee prisoners dignified conditions of detention, in particular by ensuring the "definitive reduction of prison overcrowding". The ECHR also recognised the violation of Article 13, sanctioning the absence of an effective domestic remedy to remedy these detention conditions contrary to human dignity. In particular, it underlined the ineffectiveness of the emergency proceedings that could be brought before the administrative judge, and in particular of the interim relief procedure.

This conviction was the result of a litigation campaign conducted since 2015 by the French section of the International Prison Observatory (OIP-SF) in reaction to the inaction of the public authorities. In total, some forty applications targeting seven institutions were filed with the ECHR. The aim of this campaign was certainly to obtain a conviction of France but, above all, the consequences that could be drawn from such a conviction. With regard to Article 3, recognition of inhumane conditions of detention would force the government to reorient its penal policy towards less recourse to imprisonment. As for the recognition of a violation of Article 13, it would open up the possibility of requiring the domestic administrative courts to review the conditions of detention, which in turn would exert pressure on the national authorities.

From the conviction to the monitoring the (non-)execution of the judgment

In the litigation and advocacy strategy put in place by the IOP-SF following the conviction of France, the monitoring of the (non-)execution of the judgment can be divided into two parts.

Giving the Court's injunctions a central place in the public debate

The first is advocacy: the aim is to use the findings and injunctions formulated by the ECHR - which require the State to act - to promote progress. The OIP-SF is thus working to make the JMB ruling a reference decision in its positions and statements to institutions, politicians and the media, but also to other actors in the prison-justice world. The fight against prison overcrowding has been at the heart of all legislative and parliamentary activity: the Finance Act, the parliamentary enquiry into the dysfunctions of prison policy, the information mission on the prison integration and probation services, and the examination of France by the Parliamentary Assembly of the Council of Europe. Sometimes central, it is almost always mobilised because it is intrinsically linked to the respect of all the rights of detainees and the penal and prison policies implemented.

Advocacy actions must also work to prevent the judgment from being poorly executed, i.e. the government from providing the wrong solutions. These include the policy of building more and more prison places. This has been a constant for over thirty years, and in reality it means that more and more people are being locked up. The challenge is therefore to make the judgment and its injunctions central, while countering the perverse effects that governmental responses can have.

It also seemed essential to bring together the strengths of civil society organisations in order to multiply their voices, which are as many ways of soliciting the State, but also to carry a common voice. Numerous organisations from the prison-justice world, which regularly engage in dialogue through an informal network, have thus taken up the judgment. This was done both in their own advocacy and in collective initiatives, for example in the context of the vote on the 2022 prison budget, or in a coordinated manner, such as in the context of the hearings requested by the aforementioned parliamentary commission of enquiry. The OIP-SF has also set up an informal working group to monitor the execution of the judgment, bringing together lawyers' and magistrates' unions, an association of lawyers defending the rights of detainees, and the national organisation representing French lawyers. It has made it possible to send several additional contributions to the Committee of Ministers of the Council of Europe in the context of the first review of the execution of the judgment.

In their decision of September 2021, the Ministers' Deputies found that the judgment was indeed not executed[1]. In turn, they suggested that increasing the prison population was not a satisfactory solution and called on the authorities to adopt general measures and, in particular, "new legislative measures that would regulate the prison population in a more restrictive manner". The ministers' delegates also heard concerns about the limitations of the new remedy and asked the authorities to comment on them.

As a member of the National Consultative Commission on Human Rights, the OIP-SF was also closely involved in the drafting of an "Opinion on the Effectiveness of Fundamental Rights in Detention", which was considered in the light of the condemnation by the ECHR and adopted in March 2022. Finally, it joined forces with Amnesty International to co-sign the report "Dignity in prison. What is the situation two years after France's conviction by the ECHR?” published in June 2022.

Other institutions, such as the Contrôle général des lieux de privation de liberté, the French independent administrative authority of reference on prisons, have also used this condemnation as a reference point in their observations of the conditions of detention and the policy adopted by the French authorities, but also to refer directly to the Minister of Justice. In its report published in June 2021, the Committee for the Prevention of Torture (CPT) recalled the findings and injunctions of the ECHR before calling for the adoption "within six months, [of] a global strategy for penal and penitentiary matters [...] in order to drastically reduce the occupancy rate of French prisons and to offer dignified conditions of incarceration". In its aforementioned decision of September 2021, the Committee of Ministers in turn relied on the CPT's recommendations to urge France to adopt "a coherent long-term strategy to reduce the occupancy rate of prisons".

Parliamentarians are also taking up the issue. In September 2022, fifteen senators tabled a bill "aimed at putting an end to prison overcrowding" which introduced a binding prison regulation mechanism prohibiting incarceration beyond the number of operational places. The "urgent need for the introduction of such a mechanism" is mainly motivated by the European condemnation. The proposal also aims to include this mechanism in a more global reflection on how to develop a deflationary policy. The explanatory memorandum also refers specifically to the ECHR's recommendation to revise the method of calculating operational places so that, in addition to the size of cells, it takes into account many other aspects of daily life and care in prison.

In the wake of this, some MPs are considering tabling a similar proposal in the National Assembly, again after discussions with civil society actors who monitor the execution of the judgment.

Making the conviction a new litigation lever

The second strategic aspect of monitoring the judgment is to make it an anchor point for documenting blockages and shortcomings with a view to taking future legal action. The results of which in turn feed into the advocacy.

A few days after the judgment was published, the OIP-SF was already taking new legal action. With other organisations, it obtained from the Court of Cassation that it took into account, for the first time, the issue of the dignity of detainees, and then from the Constitutional Council that it censured several legislative provisions. These jurisprudential developments forced the legislator to adopt a law in April 2021 opening a new legal remedy for detainees to challenge their undignified detention conditions, as demanded by the ECHR. Advocacy then took over with the production of a collective note addressed to parliamentarians and presented during a hearing. The association indicated the progress made but, above all, the limits of the proposed system, particularly with regard to the requirements imposed by France's conviction. Some of the points of concern raised led to the formulation of amendments to the proposed law by parliamentarians.

Following the adoption of this mechanism, the OIP-SF continued to work in concert with those involved in the justice system in order to gather information on the use made of it via a questionnaire for lawyers, to promote its use via the production of a document for lawyers in December 2021, and to evaluate its effectiveness. To date, the feedback shows little use of the new remedy, probably due to the malfunctioning of the system denounced during the legislative debates. A training course for lawyers has been launched in partnership with the Conseil national des barreaux.

At the same time, the OIP-SF is pursuing its litigation activities with the aim of forcing the judge, this time an administrative judge, to participate in the improvement of detention conditions. In its condemnation of France for violation of Article 13, the ECHR pointed out the limited scope of the power of injunction conferred on the interim relief judge by the case law. The latter considered that he was not entitled to pronounce structural measures such as the renovation of buildings or the reinforcement of the means of the integration and probation services. Therefore, only limited, one-off measures, usually with little effect on the conditions of detention, could be obtained. The Court then noted that the interim relief judge made his intervention dependent on "the means available to the administration" by authorising the latter to invoke "the scale of the work to be carried out or its cost to obstruct the interim relief judge's power of injunction". Finally, the Court emphasised that the execution of the injunctions issued was subject to "delays that do not comply with the requirement of diligent redress" and that these prescriptions "do not always produce the expected results". These are all litigation levers at the level of national courts that the OIP-SF has used to try to force the authorities to strengthen the procedures for monitoring the execution of the judgment. The inertia of the administrative judge led the association to refer again to the ECHR in September 2022 on the non-execution of the interim orders.

The inaction of both the legislator and the executive will thus feed into the next review of the execution of the judgment by the Committee of Ministers of the Council of Europe scheduled for the end of the year. In conclusion, JMB is a very important step in the recognition of prison overcrowding and the indignity of prison conditions, and the monitoring of the execution of this judgment allows us, in a dynamic approach, to pursue litigation and advocacy with a view to obtaining further progress

[1] https://oip.org/analyse/le-conseil-de-leurope-tacle-linertie-de-la-france-face-a-la-surpopulation-carcerale/

Implementation campaign in Russia is going on despite persecution

By Tatiana Chernikova, a lawyer at HRC “Memorial”,

Aleksandra Chilikova and Denis Shedov, lawyers at OVD-Info

Introduction

From April 2020 Russian NGOs are undertaking a campaign in support of implementation of the ECHR’s judgment “Lashmankin and others v. Russia” concerning the systemic problems with the freedom of assembly in Russia. During this campaign the leading Russian NGOs made three submissions to the Committee of Ministers under Rule 9.2 on the implementation of the general measures. The NGOs also submitted requests with the proposals of the reforms to the Russian national institutions including the Ministry of Justice, federal and regional Ombudsmans on human rights, the Presidential Council on human rights, the regional parliaments. Some positive results have been achieved, for instance the changes in several restrictive regional laws.   

At the same time Russian law enforcement agencies replied to this campaign and other activities of the NGOs by persecution of several NGOs.  The statement below describes two alarming cases of persecution of Russian human rights activists for their interaction with the Council of Europe institutions, namely, OVD-Info and HRC Memorial projects.

Prosecution for the implementation campaign

OVD-Info was included in the registry of foreign agents on September 29, 2021. These registries are maintained by the Ministry of Justice. The project appealed that decision and filed an administrative claim to be excluded from the registry. Ministry objected and expressly stated that OVD-Info is engaged in political activities, which, among other, are expressed in ‘public appeals to state bodies and other actions that affect the activities of these bodies’ and ‘dissemination of opinions on decisions made by state bodies and their policies’. These activities are carried out in the form of ‘reports on the problems of freedom of speech and assembly, including joint reports with HRC Memorial to the Council of Europe, with a description of problems in Russian legislation and a detailed list of recommendations for changing it’. The engagement of the project in these activities is one of the main grounds of inclusion to the foreign agents list. The same position was later repeated in the decision of Zamoskvoretsky District Court of Moscow on November 11, 2021. Moreover, on December 25, 2021, OVD-Info encountered the blocking of their website. It was blocked at the request of Russian state media watchdog Roskomnadzor on the basis of a Court, which recognized the work of the project ‘aimed at promoting terrorism and extremism.’ The court also ruled to remove the project’s accounts from social networks on the same basis.

At the very end of the year, the Russian courts of first instance adopted the decisions about the liquidation of  International Memorial and Memorial Human Rights Center, two of the biggest and oldest Russian NGOs. The courts referred to the repeated violations of the ‘foreign agents’ law. Currently the NGOs are appealing these decisions. Although the courts referred only to the ‘foreign agents’ law as a ground  for liquidation of Memorials the Prosecutor’s Office also claimed that Human Rights Center Memorial had been justifying extremist  and terrorist activities. The Prosecutor’s Office argued that Memorial had included several persons convicted for extremism and terrorism to their list of political prisonners. The prosecutor evaluated these activities as ‘pretentious promotion of provocative materials on human rights issues, which are used to destabilize the political structure of the Russian Federation’. However HRC Memorial is maintaining its list of political prisoners on the basis of the criteria elaborated in the PACE resolution 1900 (2012). This means that Memorial includes a person in this list only if it is persuaded that his activities were non violent and his prosecution was conducted in violation of human rights law and for political grounds. Memorial also directly says that the inclusion of a person in this list does not mean that Memorial supports his views. Memorial always condemned extremist and terrorist activities in the sence of international law. This debate also indirectly pointed to the international advocacy activities by OVD-Info. The fact that in the hearing on the liquidation of the HRC Memorial, the prosecutor's office decided to speak out about a separate project OVD-Info and its international communications is itself quite daunting.

Memorials are researching the history of political repressions in the USSR and fighting against human rights violations in modern Russia. They dealt with human rights issues in Chechnya, the rights of migrants, supporting political prisoners, defending the rights of Russian citizens in the ECHR and has become one of the largest and most respected human rights organizations in the country, a symbol of Russian civil society, and their persecution is sending a clear threat message to all civil society and russian non-profit organizations. This is also a clear attempt to prosecute the organisations who work on the implementation of the ECHR’s judgments. 

Unprecedented crackdown on NGOs and independent media in Russia

These incidents took place in a context of unprecedented pressure on civil society in Russia: dramatically active expansion of foreign agents registries (in 2021, 131 items were added to the registries, including the largest independent media, civil projects without state registration, 70 individuals: journalists, activists, ecologists, and lawyers); the liquidation of NGOs and independent media; active use of anti-extremist and anti-terrorist legislation to combat political opposition and human rights defenders. All this was accompanied by permanent massive arrests of peaceful protesters and hundreds of politically motivated criminal cases.

We believe that this new wave of pressure on human rights defenders and independent media is quite daunting and alarming, not only for all Russian NGOs, but the whole Russian society. The discriminatory law enforcement of the legislation on the Foreign Agent Act has reached an unprecedented scale. Currently, the lists of foreign agents include 75 NGOs, 36 media outlets, 67 individuals, four unregistered public associations, including OVD-Info. In addition, 50 foreign NGOs have been declared undesirable in Russia. It is a potential signal of the end of the openness period, and the ability to freely exercise basic human rights. Without proper defence mechanisms, even for human rights defenders, we will go only downhill from here. 

European Parliament in its resolution 2021/3018 expressly called for the Member States to increase support for civil society, independent NGOs, human rights defenders, historians and independent media outlets active in Russia and urged the VP/HR and the Member States to take coordinated action with like-minded countries to increase international scrutiny of Russia’s restrictive laws, policies and actions and to persistently raise and condemn the restrictions of fundamental freedoms and human rights by the Russian authorities, including through high-level and public interventions.

Strengthening the coalition and horizontal ties

Despite the pressure from the government, there is a tendency of growing solidarity and coalition between human rights NGOs in Russia. On 18 January 2022, 11 NGOs and human rights projects collaborated and filed a joint submission to the Committee of Ministers regarding implementation of the general measures in the case of Lashmankin et al. v. Russia. Seven organizations out of these 11 filed such a submission for the first time, which shows that more institutions become involved in this dialogue. 

On 26 January 2022, 4 organisations (OVD-Info, Moscow Helsinki Group, Committee against Torture, Public Verdict) filed reports and requests regarding the freedom of assembly situation in Russia directly to the Russian General Prosecutor, the Human rights ombudsman and the President’s Council on human rights. 

We hope that expansion of horizontal ties between human rights institutions will help to ensure the productive communication between the government and civil society. 

Conclusion 

On the one hand, all described above shows how the conditions in which Russian NGOs work are hard. It also shows that Russian law enforcement agencies are conducting a campaign against the most important Russian NGOs and those who work on the implementation of the ECHR’s judgments. On the other hand, the main NGOs are continuing coalition efforts for the implementation of the ECHR’s judgments and even this coalition is growing.

2022: A testing year for the Council of Europe and Turkey

by Ayşe Bingöl Demir, Co-director, the Turkey Human Rights Litigation Support Project

A warm goodbye to 2021 but what comes next?

The human rights community of Turkey was happy to leave behind the difficult year of 2021, but it also welcomed 2022 reluctantly. Because it is not possible to foresee how far -and where else- the non-stop back peddling of the AKP government in human rights, rule of law and democratic standards will go. Led by President Recep Tayyip Erdogan, the government’s adherence to an authoritarian regime, especially since the July 2016 coup attempt, has indeed become more fearless and aggressive over the last couple of years. The extent of the damage of this period to the country’s founding pillars -which already had had serious existential issues before- has caused is yet to be seen. The recent Human Rights Watch report, however, gives us a hint of what it looks like: Turkey’s human rights record has been set back by decades.

Not surprisingly, despite this extremely serious human rights, rule of law and democratic backsliding in the country, the reaction of the international community has been considerably limited. Turkey has a long-standing relationship with the EU, it is a NATO member and part of many UN monitoring mechanisms. Thus, the country has been one of the earliest members of the Council of Europe. The European Court of Human Rights, the most important guardian of the Council of Europe’s founding principles, has been determining individual applications from Turkey for over three decades. Moreover, the country has been an ally and trade partner of a number of western democracies, including the United Kingdom, Germany and the USA despite some setbacks in relations here and there.

In an ideal world, it would not be unreasonable to expect that a country that is part of a vibrant international relations circle would face consequences for its systemic failure to meet its international human rights obligations. But the case of Turkey is a clear illustration that we are far from experiencing the ‘ideal’ as none of these institutions or countries has so far taken an effective and meaningful stand to address the human rights situation in the country. This lack of proper response to the government stifling a whole population with its authoritarian practices has been seen as a contributing factor to the deteriorating situation.

A test case for the Council of Europe and Turkey: Osman Kavala

January 2022 and the months following might bring some changes to this worrying picture. Turkey’s notorious treatment of a prominent human rights defender, Osman Kavala, has become a key case -along with the case of jailed Kurdish opposition politician Selahattin Demirtaş- forcing the international community to review its stance. Mr. Kavala is a personal target of President Erdogan and has been unlawfully detained since November 2017 on bogus charges. Despite a strong judgment from the ECtHR on 10 December 2019 finding that his detention lacked legal basis (Article 5 of the European Convention on Human Rights), that it pursued the ulterior purpose of silencing him and deterring other human rights defenders (Article 18 in conjunction with Article 5), and that the Constitutional Court’s review of his complaints was insufficiently “speedy”(Article 5(4)), the Turkish authorities have been refusing to release him.

In Mr. Kavala’s own words, he is held behind bars because the President wants “to nurture the claim that the 2013 Gezi protests were a foreign plot to overthrow the government. In the absence of any tangible evidence on the matter, the fact that I opposed construction in the [Gezi] park, the reason for the protests, and therefore empathized with the protestors, as well as my relationship with the Open Society Foundation, which was established in our country with the support of George Soros, have become the sole basis of this conspiracy theory. The belief that Soros supported public riots in various countries became the official view in government circles after the failed coup attempt on July 15, 2016.”

After the ECtHR’s judgment became final in May 2020, the Council of Europe’s Committee of Ministers started its judgment implementation supervision process pursuant to Article 46 of the Convention. A coalition of human rights organisations, including the Turkey Human Rights Litigation Support Project, Human Rights Watch, and the International Commission of Jurists, has been actively participating in and contributing to the procedure before the Committee by way of their Rule 9.2 submissions (here, here, here and here) and advocacy efforts. Mr. Kavala’s lawyers have also been regularly updating the Committee about the developments before the domestic courts in their Rule 9.1 submissions. EIN has been playing an instrumental role in the coordination of the efforts and ensuring that the assessments of the stakeholders reach the correct address.

The Committee so far adopted eight decisions and two interim resolutions (here and here) repeatedly calling on Turkey to release Mr. Kavala immediately, to conclude the criminal proceedings against him in line with the Court’s findings and to take all necessary individual and general measures to implement the judgment in its entirety. Along with these steps, the Committee applied other tools to ensure Turkey’s compliance. These included: using stronger language in its criticism of Turkey’s failure; keeping the ongoing detention of Mr. Kavala on the agenda of its each regular and human rights meeting; inviting the Chair of the Committee and member states of the Council of Europe to raise the case with the Turkish authorities directly; and repeatedly emphasising its readiness to take all necessary steps to ensure implementation. Turkey’s response to this, however, has been using different evasive tools, arguments, and tactics to avoid implementation.

Turkey’s evasive judicial tactics to circumvent the ECtHR judgment

Through our joint submissions to the Committee, indeed, as a coalition of NGOs, we identified and drew the attention of the Committee to a number of evasive judicial tactics Turkey has adopted to circumvent the ECtHR judgment, most importantly to avoid its obligation to release Mr. Kavala. Examples of these tactics have included, but are not limited to; (1) issuing a ‘’sham’’ release order while preventing the actual release by issuing another arrest and detention order; (2) initiating multiple criminal proceedings on the same or similar factual and legal grounds which were already reviewed by the ECtHR and arguing that they were ‘new’ grounds to justify further detention orders; (3) issuing chain detention orders given in relation to either the same facts and acts re-classified under different articles of the Penal Code or by re-activating other files initially having no link to Mr. Kavala; (4) making the procedures complex and hard to follow by the Committee, e.g. by adopting a number of unwarranted joinder or dis-joinder decisions and in that way merging or disjoining several voluminous files; and (5) expediting proceedings on need basis to gain the desired result e.g. expediting appeal proceedings.

These strategies have been used by the government to serve multiple purposes: first, to ensure Mr. Kavala remains behind bars no matter what happens at domestic or international level; second, to falsely argue before the Committee that the individual measure of release required by the judgment was in fact implemented; third, to claim that Mr. Kavala’s ongoing detention did not fall within the scope of the Court’s judgment; and fourth, to argue that his ongoing detention was in the scope of ‘new’ charges or cases that were not addressed in the Court’s judgment.

These arguments put forward by the government in lengthy submissions forced the Committee to make a detailed determination, each time, of the developments in the domestic proceedings and measure them against its mandate and the scope of the Court judgment. The Rule 9.2 submissions of the NGOs and Rule 9.1 submissions of Mr. Kavala’s lawyers were, therefore, vital in providing the Committee with the necessary explanation, information and expert analysis on the developments and the government’s claims.

Another striking factor we underlined in our submissions to the Committee has been the complete ignorance of the domestic courts towards the ECtHR’s judgment, more particularly, the Strasbourg Court’s thorough evaluation of the accusations and state of evidence against Mr. Kavala. This ignorance did not only come from the first instant courts and the prosecutorial authorities but the appeal courts and the Constitutional Court as well. Along the process, the government representatives have never stopped using their populist discourse claiming that the ‘westerns powers’ had a political agenda and that the Court judgment was not binding but advisory in nature. The President also continued his public speeches blatantly targeting Mr. Kavala to consolidate his political agenda. We also saw examples of direct interference with the judicial conduct by the government which included promotion of prosecutorial actors in the case to higher judicial roles (one to Deputy Minister of Justice and one to a member of the Constitutional Court).

The Council of Europe Commissioner for Human Rights criticised this picture strongly in a statement dated September 2021 expressing that Mr. Kavala “is a victim of a justice system that has been used to silence  human rights defenders, lawyers and journalists and displayed unprecedented levels of disregard for the most basic principles of law, such as the presumption of innocence, no punishment without crime and non-retroactivity of offences, or not being judged for the same facts again.”

Turkey to become the second Council of Europe member facing infringement proceedings

It was against this background that the Committee of Ministers had to conclude in its 30 November-2 December 2021 session that ‘Turkey is refusing to abide by the final judgment of the Court’ in the case of Mr. Kavala. The Committee made it clear that if Mr. Kavala is not released by the Committee’s 2 February 2022 session, pursuant to Article 46(4) of the Convention, it will refer to the ECtHR the question of whether Turkey has failed to fulfil its obligation under Article 46(1) -the obligation to implement final judgments of the Court- particularly in respect of individual measures required in this case.

Launching infringement proceedings is a striking confirmation of Turkey’s flagrant disregard for the Council of Europe’s human rights and rule of law standards and democratic principles. It is one of the most serious measures the Committee can use against a member state under the Convention which has serious legal and political consequences. Turkey will potentially be the second country, after Azerbaijan, in the history of the Council of Europe against which this tool will be applied.

If the Committee refers the case back to the ECtHR and the Court concludes that Turkey failed to comply with its Article 46(1) obligation, more serious steps against the country might follow. This is of course if Turkey continues its refusal to release Mr. Kavala. This scenario might bring to the table of the Committee the sanctions of suspending Turkey’s Council of Europe membership or even expelling it from the Council pursuant to Article 8 of the organisation’s statute.

The decision of the Committee of Ministers to notify Turkey of its intention to launch infringement proceedings seems to not have much impact on the judiciary’s handling of the arbitrary proceedings against Mr. Kavala. As recently as 17 January 2022, an Istanbul Assize Court once again decided on the continuation of his detention. This came as a further confirmation of the appropriateness of the Committee’s decision as well as its fairness and necessity pursuant to Article 46 of the Convention and its past practices.

The Council of Europe must show its firm commitment to its founding principles

Some scholars share concerns over the potential consequences of such robust actions against Turkey and other member states. Accordingly, the government might react to the developments poorly and use this step as a pretext to further its ‘anti-Western’ political agenda which in turn might cause a further drift of the country from democratic principles. They argue that applying more soft tools and keeping an open dialogue might work better. I simply do not agree. A close look at the government’s practices, especially since the July 2016 coup attempt, clearly shows that such strategies have not been helpful in improving the situation in the country. In contrast, the inaction of the international community, including the Council of Europe institutions, has been presented by the government as a justification of its problematic actions and confirmation of their legitimacy. As a result, the government became more abrupt and reckless in the steps it has taken to consolidate its power and adopt its authoritarian agenda.

It must also be borne in mind that the founders of the Council of Europe and the drafters of the Convention and its subsequent amendments had foreseen that there might be instances where the state parties would not comply with their obligation to implement the ECtHR judgments. In response to this scenario, they put in place a mechanism and gave this mechanism tools to use to ensure implementation. Arguing that these tools must not be used in practice for potential consequences, despite the clear roadmap in the Convention and other relevant instruments, means a disregard to the Council’s very own rule of law principles.  

Finally, the situation in Turkey does not present an isolated case among the Council of Europe states. It is only one example of growing authoritarianism across Europe. There are several others, such as Russia, Azerbaijan, Hungary, and Poland, who have been going through similar fallouts from the Council of Europe’s founding principles. These countries are learning from each other, they tend to adopt similar policies and measure their next steps according to the challenges one other faces in the process. It is, therefore, crucial for the Council of Europe bodies -as well as individual countries and other international institutions- to show a firm stand and, when conditions are met, to use available political, legal and financial tools designated to be used for the circumstances they were designated for. A position otherwise has a potential, under the current atmosphere, to damage the fundamental values of the Council further and to bring the Council organs into an existential crisis.

Torture and ill-treatment by police officers in Greece

By Panayote Dimitras, Spokesperson, Greek Helsinki Monitor

In mid-August 2002, Georgios Sidiropoulos and Ioannis Papakostas, two youngsters who had never met each other before, were taken to an Athens police station on alleged traffic violations (never subsequently confirmed by the courts). A police officer on duty took them to an office and repeatedly used a taser gun against them, to punish them because they had allegedly resisted arrest. The complaints launched in the following days led to an administrative investigation that concluded that their claims were false as the officer simply had used a wireless . A criminal investigation which after several years led to the only trial in Greece where a police officer was irrevocably convicted for torture - a full 12 years after the eents, in 2014 . The sentence was a mere 5 years converted into the minimum fine possible of 5 euros per day. The officer convicted for torture did not spend even one day in detention or in prison.

Source: Panayote Dimitras

In January 2018 the European Court of Human Rights found Greece in violation of Articles 3, 6.1 and 13 of the Convention. In particular, the Court found that “the criminal and disciplinary system had proved to be seriously lacking in rigour and incapable of having a deterrent effect to ensure the effective prevention of illegal acts such as torture.”

This was the most recent of the thirteen cases in the Makaratzis group, concerning impunity for the use of potentially lethal force; ill-treatment sometimes amounting to torture; absence of effective administrative and criminal investigations; inadequate criminal proceedings and penalties; and in some cases a failure to investigate possible racist motives. The leading case (the shooting of Christos Makaratzis) dates from 199

The Committee of Ministers had confined its three examinations of the execution of these cases in 2012, 2015 and 2017 to welcoming the information provided by Greece on the modernization of the law on the use of arms, the establishment of an office to review the related complaints, and the possible reopening of the cases adjudicated by the ECtHR. Three written submissions from the Greek Helsinki Monitor and one from REDRESS highlighted the ineffectiveness of the Greek state’s response. These were followed by an oral briefing to CM representatives by GHM in November 2018. In December 2018, for the first time, the CM issues a very strong decision seeking a detailed set of information from Greece by September 2019

Greece is now obliged to provide documented information about the effectiveness of the Ombudsman as an Independent Complaints Mechanism. This relates not only to the reopening of investigations in old cases, but also to reviewing new complaints that, as GHM has noted, number in the hundreds. Greece must also amend its legislation to bring the definition of torture in line with international standards and prevent the conversions of imprisonment imposed for torture and other ill-treatment into fines. The state must also provide information on the investigation of possible racist motives when ill-treatment occurs in the context of law enforcement; and, finally, implement its commitment to issue written apologies to the victims.

This decision is a powerful weapon in view of the CPT visit to Greece in 2019, the review of Greece by UN CAT in July-August 2019, and the probable new review of the Makaratzis case by the CM in December 2019. The Greek Helsinki Monitor will seek to capitalise on this decision, by seeking the apologies promised from the authorities; pressing the Ombudsman to conclude at least some of the hundreds of the investigations it has been carrying out since mid-2017 so as to assess their effectiveness; and review the proposed amendments to the criminal code announced by the government so as to assess if they are up to the standards defined by ECtHR, CM, CPT, and CAT. These institutions will be kept closely informed of developments.

Domestic violence de facto decriminalised in Moldova

By Natalia Vilcu, Executive Director, Women’s Law Centre

Legal empowerment by WLC of a victim of domestic violence. Photo: Diana Pinzari, Communications Specialist, Women’s Law Centre

Domestic violence is one of the most serious forms of gender-based violence. It severely violates the enjoyment by women of their human rights, in particular their fundamental rights to life, security, freedom, dignity and physical and emotional integrity, and it therefore cannot be ignored by governments[1]. This article analyses the Moldovan Government’s failure to effectively implement the judgments of the European Court of Human Rights (ECtHR) on domestic violence. Although some general measures have been undertaken to implement the judgments in the group of cases Eremia v. the Republic of Moldova[2], adequate protection for victims of domestic violence and prosecution and punishment of perpetrators is still inefficient. The response of the authorities to the judgments in this group of cases highlights the failure of the state authorities to protect victims of domestic violence, eliminate the risk of violence and punish perpetrators for their acts of violence against family members.

Measures undertaken by the Government to amend national legislation

The group of cases Eremia and other v. the Republic of Moldova includes four cases: Eremia and others v. the Republic of Moldova[3], B. v. the Republic of Moldova[4], Mudric v. the Republic of Moldova[5], and T.M. and C.M. v. the Republic of Moldova[6]. The ECtHR found violations in these cases of Articles 3, 8, and 14 in conjunction with Article 3 of the Convention. The Court stated that the national authorities failed to protect the applicants from ill-treatment and to undertake any measures that would deter the abusers from further violent attacks. Moreover, the authorities displayed a discriminatory attitude towards the applicants as women. The ECtHR judgments highlighted that prevention and response to violence were important to ensure the application of protection measures for the victim and to eliminate the risk of violence by the perpetrator.

In response, the national authorities undertook general measures, including amending legislation as follows:  

-        new wording of Article 201/1 of the Criminal Code (Domestic violence) was introduced, which, besides more serious punishment, established criminal liability for other forms of violence, including psychological and economic violence;

-        a new tool to protect victims of domestic violence was introduced – the emergency barring order – a temporary measure applied by police to protect victims of domestic violence by removing the aggressor from the house and setting certain prohibitions established by law;

-        the definition of family member was extended to also include intimate partners and divorced couples living separately;

-        the Contravention Code (which defines actions or inactions with a degree of social danger lower than of a crime) was supplemented with a new Article 78/1 (Domestic violence).

Victim of domestic violence supported by WLC in her efforts to obtain a Protection Order. Photo: Diana Pinzari, Communications Specialist, Women’s Law Centre

On 7 December 2017, at the 1302nd meeting of the Ministers’ Deputies, the Committee of Ministers examined the information provided by the Government on individual and general measures and adopted a resolution[7] to close the examination of cases Eremia and others v. the Republic of Moldova, B. v. the Republic of Moldova and Mudric v. the Republic of Moldova. The Committee of Ministers decided to continue supervision of the outstanding individual and general measures under the T.M and C.M. case.

Amendment to the Contravention Code hinders victims of domestic violence from effective protection

The amendment to the Contravention Code has had serious negative consequences for victims of domestic violence. It has resulted in many fewer cases being treated as criminal, and many more as contravention cases. Thus, in 2015 and 2016, respectively, 1914 and 1679 criminal cases, while 544 and 833 contravention cases were initiated[8]. After the amendment to the Contravention Code was introduced, the number of criminal cases initiated halved compared to previous years (853), while the number of contravention cases doubled to 1941[9]. The contravention rule (Article 78/1) sanctioning domestic violence differs from the criminal rule (Article 201/1) by the degree of bodily injury caused. A perpetrator who causes a victim an insignificant bodily injury is subject to contravention liability. If a light, medium or serious bodily injury is caused, the perpetrator may be subject to criminal liability.

Thus, in practice, a mandatory condition to initiate a criminal investigation is the bodily injuries caused to the victim, which are typically characteristic of physical violence and in some cases of sexual violence. Therefore, while the Government claims that there are now harsher punishments for acts of domestic abuse and that there is criminalisation of psychological and economic violence, the reality is that criminal investigations are initiated primarily based on the degree of bodily injuries caused and there are almost no convictions for psychological or economic violence as these forms of violence do not cause any bodily injuries.

Many criminal justice officials share the perception that economic or psychological violence cannot produce suffering similar to that caused by physical violence. They tend to dismiss cases of economic or psychological violence if no bodily injuries accompany such acts. This is a very wrong perception of domestic violence, in contradiction with international standards. For instance, the Istanbul Convention imposes an obligation on member states to take necessary legislative or other measures to ensure that the intentional conduct of seriously impairing a person’s psychological integrity through coercion or threats is criminalised[10]. The Council of Europe Parliamentary Assembly Resolution 1825 (2011) on psychological violence highlights that ‘…it is of utmost importance to combat psychological violence, not only because it is a serious form of violence which leaves deep and lasting scars on the victims, but also because, unless it is stopped, it often escalates into physical violence.’[11]

As a result of the legislative amendments, in many cases of domestic violence the punishments applied to perpetrators do not have any preventive and deterrent effect. There is no liability for psychological and economic violence although such acts are in the Criminal Code. The sanctions applied for a domestic violence offence under the Contravention Code are community service from 40 to 60 hours or contravention arrest from 7 to 15 days. There are some exceptions to contravention arrest. It shall not be applied to persons with severe disabilities, military staff of the Ministry of the Interior, juveniles, pregnant women, women who have children under the age of 8, individuals who are sole breadwinners of children aged under 16 and retired individuals. On the other hand, community service is applied only with the consent of the perpetrator. Hence, when a domestic abuser is retired or is the sole breadwinner who refuses to undergo the sanction in the form of community service, no sanction will be applied to him/her. Considering that most cases are contravention cases, perpetrators are mostly given a minimum sanction of 40 hours of community service. It is very seldom that contravention arrest is applied, while individuals exempted from contravention arrest and refusing community service avoid any liability for acts of domestic violence. The ECtHR judgments in the Eremia group of cases referred to lack of deterrent effect of the measures applied by the national authorities. Considering the aforementioned, the legislative amendments which the Government referred to in its report to the Committee of Ministers[12] had, in fact, the effect opposite to deterring perpetrators. They rather encourage them to perpetuate the acts of violence given the impunity or milder sanctions applied.

Conclusion

The Moldovan state authorities, in their efforts to enforce the ECtHR judgments and undertake general measures, continue to prioritize the rights of perpetrators and treat with less significance the rights, needs and interests of victims of domestic violence. An example to this end is the introduction of article 78/1 in the Contravention Code and, hence, de facto decriminalisation of domestic violence in Moldova. Even if Article 201/1 of the Criminal Code, in a new wording, toughens the punishment for committing domestic violence crime, it is not applied to the extent expected due to the contravention liability introduced for insignificant bodily injuries caused by an act of violence. Since 16 September 2016, when Law No. 196 came into force, the courts have acquitted defendants or terminated proceedings in several pending criminal domestic violence cases on the ground that the defendants were not charged with causing light, medium or severe bodily injuries, which became a mandatory condition to classify an act of violence as a crime. Hence, following the legislative amendments, the chances to deter domestic abusers, in particular for acts of violence not resulting into bodily injuries, significantly decreased as the punishments applied to them became milder and disproportionate to the acts committed.

The ECtHR reminds the Council of Europe member states that, in line with the Convention, they have the obligation not only to adopt laws, but also to apply them efficiently in order to observe the rights guaranteed by the Convention as ‘…particular vulnerability of the victims of domestic violence and the need for active State involvement in their protection has been emphasised in a number of international instruments.’ [13] So far, the Republic of Moldova has made some progress in adopting necessary laws but still needs to ensure their effective application to guarantee that victims of domestic violence are protected and that perpetrators are brought to justice.

[1] Council of Europe Convention on preventing and combating violence against women and domestic violence signed by the Republic of Moldova on 6 February 2017 (Istanbul Convention)

[2] https://hudoc.exec.coe.int/eng#{%22fulltext%22:[%22eremia%22],%22EXECDocumentTypeCollection%22:[%22CEC%22],%22EXECIdentifier%22:[%22004-7033%22]}

[3] Idem

[4] https://hudoc.exec.coe.int/eng#{%22EXECIdentifier%22:[%22004-14042%22]}

[5] https://hudoc.exec.coe.int/eng#{%22EXECIdentifier%22:[%22004-14056%22]}

[6] https://hudoc.exec.coe.int/eng#{"EXECIdentifier":["004-14229"]}

[7] https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=090000168076d4d6

[8] http://politia.md/sites/default/files/ni_violenta_in_familie_12_luni_2017_plasare_web.pdf

[9] Idem

[10] Article 33 of the Council of Europe Convention on preventing and combating violence against women and domestic violence signed by the Republic of Moldova on 6 February 2017

[11] http://www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=18052&lang=en

[12] https://rm.coe.int/168075998d%20(3;

[13]  ECtHR, Case of Bevacqua and S. v. Bulgaria, Judgment of 12 June 2008