In my previous article titled “UN decision opens doors for release of victims of decree-law in Turkey”, I had talked about the historical decision taken by the UN Human Rights Committee after the appeal made by Turgay Karaman and Ismet Ozcelik, who are members of the Movement and had been abducted by an operation carried out by MIT (Turkish National Intelligence Organization) in Malaysia.
Briefly, I had explained the following facts; the decision was a first taken in this direction by the United Nations Human Rights Committee; they recorded all of the unlawful incidents in Turkey one by one; the actions taken against the people with the help of KHK (Kanun Hukmunde Kararname, decree-law) were illegal; Constitutional Court cannot be recognized as an “effective domestic remedy”; accusations such as using ByLock and Bank Asya cannot be reasons for arrests; and Turkey’s “OHAL” (Olaganustu Hal, state of emergency) plea towards these actions cannot be accepted as an excuse for the violations of rights.
I had also mentioned that the UN allowed Turkey a total of 180 days to release the accused and pay compensation equal to the damages they have been experiencing.
The decision naturally drew a lot of attention. However, the decision, more questionable than itself, came to a deadlock on a single subject; is the decision binding for Turkey? In fact, I was expecting such defense/strategy from the government flank, but in a kind of funny way, the victims also reacted the same way.
Even the ones who were tortured and victimized asked: “Are the ones who did not abide by the decision of ECHR (European Court of Human Rights) will do so for the decision taken by the United Nations?”
This psychological situation can be called the success of the Erdogan regime. Because they set the bar so high about unlawfulness, even the victims refrain from claiming their own constitutional rights. However, it was expected for the victims to claim their rights while the government would plea by stating “not binding for us”.
Let’s get back to the main topic; is this decision binding for Turkey or not?
Human Rights Committee: What is it, and what does it do?
United Nations Human Rights Committee is the branch of the United Nations that acts as a court and follows the situations where the regulations of the Declaration of Human Rights are not complied. Despite the fact that the committee is not a court in real terms, it functions just like one, and the same procedures are being followed just like the other international courts. Therefore, the committee, which is identified as a half-judicial organization, follows nearly an identical method adopted by the ECHR both for the acceptability of the appeals of the victims and examination of a limine.
Thus, it is illusive to view the decretive of the Human Rights Committee as a “suggestion”.
The bindingness of the decisions of this Committee is very clear for the countries which allow personal appeals to the Committee as a party to the Optional Protocol and accept the Committee to provide an observation upon appeals.
During the decision stage, the Committee, which determines if one or multiple rights or freedoms guaranteed by the International Covenant on Civil and Political Rights are violated, requests the pleading country to take necessary measures in case of any violations.
In fact, the Committee reminds the countries, which already approved OHCHR and the Protocol, that they had promised to fulfill their obligations, and states “you are obliged to take necessary measures” in case of a decision of inadmissibility.
In other words, the Committee views its operation as a judicial one and accepts the fact that the identified violations create some obligations for the relevant country. When the process examined, it is clear that a considerable amount of the decisions of the Committee is taken into consideration by the countries and the measures underlined are taken.
Besides, the UN categorizes the Human Rights Committee as “an international investigation and settlement authority” under the European Convention on Human Rights article no 35/2-b. Moreover, it is a known fact that the decisions of the UNHRC have an impact upon the judicial opinion of the ECHR. For example, the approach of the Human Rights Committee was taken as a reference for the Grand Chamber’s Bayatyan/Armenia decision.
In other words, the ECHR adopted the decision of the UNHRC and changed its ruling. Many jurists are of the same mind about the rapid indistinction of the difference originates from the bindingness criterion.
It bears repeating at this point; the countries such as France and Turkey, where the international conventions concerning the human rights are being identified a status above the law, are obliged to question the suitability of the legislation they enforce in order to provide a solution for the dispute they encounter.
At this stage, there is no difference between the ECHR and OHCHR in terms of the international obligations laid on the countries. Therefore, while the national judge may abstain from enforcing a current law based on the European Court of Human Rights provisions, or the European Convention of Human Rights decisions, s/he may also rule the same by justifying the same OHCHR provisions and HRC decisions.
Turkey Signed and Became a Party
Let’s see where Turkey stands now.
Turkey became a party to the International Covenant on Civil and Political Rights (OHCHR) on 23 September 2003. The acceptance process of the bindingness of the juridical power of the committee became possible after the Optional Protocol was accepted.
And the Optional Protocol was signed by Turkey on 2 February 2004.
The bindingness of the jurisdiction and the decisions of the committee came into force for Turkey as of 24 October 2006, together with the approval of the protocol and the publishing in the Official Gazette (Official Gazette no 26250, 5 August 2006).
Furthermore, in pursuance of the 90th article of the Constitution, all international agreements duly put into effect carry the force of law.
No appeals can be made to the Constitutional Court about this by claiming unconstitutionality. As a result, the international agreements are taken as reference for the disputes emerged due to the fact that the legislation concerning the duly constituted fundamental rights and freedoms has different provisions in the international agreements and the local laws. In other words, you cannot say “I will not fulfill my obligations” after you sign a tenancy contract.
Briefly, the thesis, which suggests that the UNHRC decisions are not binding for Turkey, is baseless and not legal.
France Troubled by the Commission
One of the much-debated decisions taken by the UN Human Rights Committee was without a doubt the ban introduced by France on the burqa.
The Committee expressed its opinion for the ban to be lifted which prohibited the hiding of the face in public spaces. The Committee is expected to take further steps in order to repeal the legislation.
Likewise, another controversial decision taken by the UNHRC was again about France.
Fatima Latif, a worker with Moroccan origins, claimed in the lawsuit which revealed the “Baby Loup decision” that she was fired from her job due to the fact that she was wearing hijab and appealed to the Commission. After she had exhausted the domestic remedies and failed, she appealed to the UNHRC and argued that her constitutional rights were violated.
The Committee, which accepted the appeal from Latif, condemned French to pay compensation. The Committee allowed France a total of 180 days to take action.
In recent months, the Committee expressed opinions and made decisions about the contradicting matters in the world agenda such as the overthrowing of the Brazilian Head of State Lula; the arrests of the minority Muslim Uyghurs in China; and human rights violations in Congo.
“Human Rights Advice” to Expats by Turkish Government
As it is seen, there is a strong submission towards the decisions taken by the UN Human Rights Committee.
Furthermore, there is no significant difference remain between the UCHR and UNHRC. At this point, we should draw attention to Turkey’s contradictions as well. The first contradiction of Turkey is the fact that Turkey had signed and agreed on the protocol as of 5 August 2006. Meaning, Turkey officially acknowledged that the juridical authority and decisions of the Committee shall be binding towards domestic remedies.
The government provides regular pleads before the UNHRC. For example, Turkey pleaded for a good while for the Ismet Ozcelik and Turgay Karaman decision. Though the pleading was turned out to be a scandal on its own. Because according to the plea provided by Turkey before the commission was: “It is normal to have human rights violations due to the fact that there is an ongoing state of emergency; there is no maltreatment or violation of rights in prisons; all of the people who are imprisoned by the KHK decrees are terrorists”.
For example, the following line exists in Turkey’s plea; “Ismet Ozcelik and Turgay Karaman had access to emergency health services for 24 hours throughout their imprisonment time in Sincan Prison. They had television, kitchen, and bathroom in their ward. They had unlimited access to open air and sunlight. Mondays were visiting days in prison. However, their relatives did not visit the writers. Despite the fact that they had telephone privileges, they did not use it. Ismet Ozcelik met his lawyer on 28 May 2017 for 57 minutes, and 66 minutes on 30 May 2017. Turgay Karaman met his lawyer on 26 May 2017 for 30 minutes. The defendants imprisoned in Denizli stay in 20-person wards. There is no limitation on telephone calls or visits. Ismet Ozcelik was visited by his family on 6 June 2017 and called his relative on 12 June 2017.
Obviously, the plea about the Sincan Prison is inaccurate.
In other words, the state is openly lying. However, I would like to underline that although they make “these decisions are not binding for us” type of statements, they always prepared the pleas requested for the Commission quite extensively. Nobody had said something like “this committee and its decisions are not binding for us. That is why we do not provide a plea, and we do not recognize you” until today.
The second contradiction of Turkey is the AKP government’s promotion of the UNHRC as “an effective mechanism” for their own followers about the human rights violations they face. The following lines are written in the leaflet titled “Fighting Mechanisms Against the National and International Human Rights Violations” prepared by the Administration for Turks Abroad: “Despite the fact that there is no bindingness in terms of the law, the contracting state is obliged to abide by the decisions”. In the same leaflet, the continuity of the UN mechanism is emphasized. In other words, if the “victim” is an acceptable citizen of AKP, the enforcement of the decision taken by the UNHRC becomes mandatory.
Smashing Decision by the UN
The circles, who had flouted the UNHRC decision as it was “unimportant”, actually operated the same mechanism.
For example, the defendants of the Balyoz Case (Sledgehammer Case) appealed to the UN and managed to receive a decision from the United Nations Working Group on Arbitrary Detention, one of the subbranches of the Human Rights Committee.
The decision hit the headline in Hurriyet on 23 July 2013 with the title “Smashing Decision by the UN”.
It is pointed out in the news that; the working group ruled that three articles were violated concerning the “fair trial and right of defense”; Turkey is allowed 180 days to take action; Turkey must pay compensation to the accused.
By the way, I would like to remind you about a very important detail; Working Group on Arbitrary Detention is a subbranch of the Human Rights Committee. The final decision taken about the Movement is above this commission. Therefore, there is no legal basis for the people, who say “smashing decision” for the ruling of the working group, to flout the decision of the committee. The lawyers of the defendants of the Balyoz case referred to this decision and requested their clients to be released. However, all of them had been released since Erdogan had made a juridical coup and formed an alliance with the Ergenekon (Ergenekon Case) supporters after the corruption investigations emerged on 17 December 2013.
Different Mechanisms Exist
There is no law in Turkey. The law, as Dogu Perincek puts it, is “the dog of politics”. Erdogan already made the judges and prosecutors his equerries when he had said: “let’s do the thing in court”. However, Turkey’s jurisdiction or the Constitutional Court directed by the Saray (Presidential Palace) are not the only alternatives for the victims of the Erdogan regime.
Moreover, it is not even ECHR that makes political decisions when it comes to Turkey, rather than legal ones.
As a matter of fact, the “universal exceptionalism” exists in international law in order to prevent human rights violations to find legal protection under the roof of any geography. In other words, any human being; politician; statesman; bureaucrat from any kind of religion; race; ideology who commits human rights violations; carries out abuse; commits war crime may be prosecuted in any country within the scope of this “universal exceptionalism”.
The description of the crime which falls under the universal exceptionalism is very clear; “‘For any action to become a crime against humanity, the acts when committed as part of a widespread or systematic attack must be directed against any civilian population, and must be based on political, national, racial, or religious grounds”.
All of the related statute reflects the treatment experienced by the members of the Movement in Turkey at present.
According to the evaluation made by the experts of the topic, the victims of the process in Turkey have the right to file a lawsuit within the scope of the universal exceptionalism in 150 countries throughout the world. Because, countries such as Germany, England, Austria, Belgium, France, and Spain hosted many lawsuits concerning the same matter until today.
Many countries nowadays do not stipulate “the need of the perpetrator to be inside the country” and start the judicial process right away.
There are numerous examples of such lawsuits. For example, Pinochet, the cruel dictator of Chile. When Pinochet had visited England in order to receive treatment for his herniated disk, the Spanish judges claimed that Pinochet had committed crimes against humanity, and requested his expedition to Spain. Pinochet had been arrested and sent to Spain. One of the most recent lawsuits about this matter was in Germany. Jamil Hassan, an intelligence officer of the Bashar al-Assad regime, was sued and accused of torturing 16 Syrians. Another similar lawsuit was filed in Austria. These countries did not care whether the accused was inside the premises of the country. The US filed a similar lawsuit against Liu Qi, the former Mayor of Beijing. There are also ongoing lawsuits about Guatemalan and El Salvadorian politicians in Spain. Examples can vary.
No Conclusion Possible without Lawsuits
As a result, the decision of the UN Human Rights Commission is extremely important. An international court finally recorded the cruel treatment of the Erdogan regime towards the members of the Movement. As I have mentioned above, the Committee is an institution working just like a court, and its decision are directly binding for the parties who signed the International Covenant on Civil and Political Rights. Turkey signed the covenant in 2003, and started the bindingness process in law in 2006 by signing the Additional Protocol. Therefore, there is no need for a doctrine debate at this stage. There are decisions as an example, and the UN Human Rights Committee has taken a very clear decision. And the justifications are quite clear and understandable by everybody; “ByLock and Bank Asya cannot be adopted as reasons for the arrests. Constitutional Court is no longer a domestic remedy. Turkey cannot violate the fundamental rights of its citizens by bringing forward OHAL as an excuse. The act of prosecuting the people with the KHK decrees is a violation of rights”.
However, the decision does not pave the way for an automatic release or compensation for hundreds of thousands of people
Nevertheless, this decision is a historical one and the victims must appeal to the courts and Constitutional Court by attaching the decision in question. I can already see a lot of people commenting “Erdogan does not care about the decision of ECHR, why would he bother about this one?”.
While this is a wrong opinion, it will only end up playing into Erdogan’s hand. The results of not enforcing the decisions where you have a signature underneath will be an extremely heavy burden to carry. First of all, it will be disastrous in terms of politics. Because UNHRC follows the decisions it takes very closely. A rapporteur is appointed and the result of the decisions are being followed in the related country. If any country ignores these decisions, the rapporteur informs the higher authorities of the UN.
At this stage, political tension will increase.
In other words, there will be political results aside from the legal results. When the number of recorded decisions increases after the violation of rights is realized, the stance of the local courts and the ECHR will change inevitably. There are numerous examples. Therefore, it is crucial to follow international institutions in order to stay up to date about the violation of rights.
