Dr. Yaşar Demircioğlu*
After it was revealed that the Turkish Deputy Minister of Justice, Niyazi Acar, visited the President of the ECHR, Siofra O´Leary, before the decision on Yüksel Yalçınkaya was announced, many people expressed concerns that the Turkish government may have attempted a last-minute intervention in favor of a favorable decision, raising concerns. However, senior and experienced ECHR experts wrote, “On June 28, a decision was already made regarding the Yalçınkaya case, so there can be no question of changing the decision at this stage.”
So, what might be behind the Deputy Minister’s visit to the President of the ECHR? The answer to this question lies in the fact that the ECHR had previously indicated structural problems in Turkey and called for general measures to be taken in similar two cases.
The experiences and past practices in Turkey’s relationship with the ECHR already indicated that the ECHR could make a decision in accordance with Article 46. Even if the experiences in the Ümmühan Kaplan/Turkey and Müdür Turgut/Turkey cases could be read correctly, it could be inferred that the ECHR might request general measures to be taken in Turkey.
So, what do these two cases say about what will happen next? What could be the purpose of Deputy Minister Niyazi Acar’s visit to the President of the ECHR, and what practical implications do these two significant cases from the past suggest for the implementation of the Yalçınkaya case?
The visit of Minister Niyazi Acar gains importance at this stage. The ECHR and the Committee of Ministers have assigned very important responsibilities to the Turkish Ministry of Justice, Turkish bureaucrats, the government, and the courts. The photo of Minister Deputy’s visit to the ECHR carries the heavy responsibility of how and in what way these duties will be fulfilled.
The details of what Minister Niyazi Acar and the President of the ECHR discussed are actually the same as in the Ümmühan Kaplan/Turkey and Müdür Turgut/Turkey cases previously decided by the ECHR. In fact, at that time, the government had to enact Law No. 6384 on January 19, 2013, in order to address the requirements of the long list of tasks set by the ECHR, that is, by making a legislative regulation to solve thousands of pending cases before the ECHR.
Regarding both cases, the ECHR, concerning the implementation of its general/objective pilot decisions, reminded the Turkish State of its obligations under international treaties previously signed by Turkey, Recommendation No. 2008/2 of the Committee of Ministers, the Interlaken Conference of the European Court of Human Rights held in 2010, and the Conference on the Future of the European Court of Human Rights held in Izmir in 2011.
The agreement reached by the ECHR with the Turkish Government regarding both cases can be summarized as follows:
- Member States have the “authority to determine their own method of implementation” regarding structural problems identified by the ECHR and general measures to be taken. This authority can be used for final cases by applying the route of retrial, as well as for cases not yet brought before the ECHR by establishing a Commission.
- Although Member States have the freedom to choose the method of implementation, this freedom does not entail arbitrary and unlimited discretion. The Committee of Ministers of the Council of Europe has the authority to effectively and fairly monitor whether the measures taken by a Member State have brought an end to the violations.
- Decisions to suspend the examination of applications not yet reached the ECHR will be made regarding applications that are still at the Constitutional Court/Supreme Court stage in Turkey. The ECHR has decided to postpone the examination of similar applications until appropriate measures are taken to solve the structural problems.
- However, ordinary examination will continue for applications entered into the ECHR records and notified to the Government. The decision to suspend will also apply to applications not yet notified to the Government but in the ECHR records.
- The method presented by the defendant State and the solution produced will be applied to all legal, administrative, and criminal disputes.
- The defendant State is given a one-year period to establish an ad hoc/domestic remedy that will provide adequate and suitable satisfaction for similar cases, with the expectation that it will resolve the structural problems.
- The new and effective domestic remedy offered by the defendant State will be established in such a way that it will definitely resolve any new disputes or prevent the dispute from being brought before the ECHR again.
- The pilot decision issued by the ECHR regarding structural problems and general measures applies not only to Turkish courts obligated to conduct retrials but also to all administrative authorities and public officials.
- Unexamined disputes suspended by the ECHR, which have not yet reached the stage of the ECHR and have not been notified to the Government, will be resolved according to the method approved by the Committee of Ministers (retrial or a separate commission), assuming that the defendant State will establish a new effective domestic remedy.
- Both the Court and the Committee of Ministers have the authority to monitor and supervise whether the measures and methods implemented by the defendant State comply with the recommendations of the Committee of Ministers of the Council of Europe and the final reports of the Interlaken, Izmir, and Brighton Conferences, and whether they allow the applicants to enjoy the fundamental rights and freedoms set out in the Convention. The defendant State will cooperate fully with the Committee of Ministers regarding the implementation of the decisions.
- The decision regarding individuals resulting from the method implemented by the Government (resulting from retrial or commission review) is not final and can be appealed and reviewed after the decision of the Constitutional Court or through a complaint to the Strasbourg Court. The burden of proving that the proposed method and solution are an effective domestic remedy lies with the defendant State.
In this context, it is hoped that all courts in Turkey, regardless of whether they are criminal, civil, or administrative courts, will issue acquittal judgments in all criminal cases opened under TCK 314/2 Terrorism Organization Membership, and similar favorable decisions will be made in ongoing cases in administrative and judicial courts in favor of the victims.
However, it is necessary to consider some possibilities in the face of the reality that the Turkish judiciary, shaped after 2016, may not readily accept the Yalçınkaya decision.
In this regard, procedures for spreading and slowing down cases that are currently in the first-instance courts, appellate or Council of State/Supreme Court stages may be applied. Brave decisions that comply with the law and conscience may be made in a limited number of exemplary cases, where acquittal or return decisions are issued. After this stage, a suspension/postponement procedure may be applied for applications to be submitted to the ECHR. The President of the ECHR may also have implied measures to prevent new applications, such as spreading out the hearings until new measures are taken.
The government may want to persuade the victims with practices such as the Amnesty Law, as well as resuming the retirement and payment of compensation for victims of the 28 February era, similar to offering candy. Civil administrators, judicial officers, military personnel, and police officers, among others, may be retired automatically, and return procedures may be initiated for lower-level public officials. Of course, in addition to all this, the government and judicial authorities may declare that they do not recognize and will not implement the Grand Chamber’s decision.
Unfortunately, it is not possible to fully compensate the injustices suffered by this large group of victims, including those who died in work accidents, due to illnesses or suicides, those who drowned in Meriç/Ege, those who reached retirement age, and those who emigrated abroad, no matter what solution is produced. Our only duty is to continue the legal struggle as persistent followers and iron nuts.
*Dr. Yasar Demircioglu is an expert in international law, justice, and human rights, currently based in Berlin.
This article originally appeared on TR724.com in Turkish and has been translated into English by Politurco.
