While not part of the European Union, Turkey is member of the European Court of Human Rights (ECtHR). The court retains the force of law over contracting states and has previously ruled on contentious issues from prisoners’ right to vote to the treatment of terrorism suspects in custody. However, since the coup attempt, it rejected several applications regarding systemic human rights abuses and the undemocratic process in the 2017 Turkish referendum. Why the change?
Research on the court illustrates how avoiding this political crisis could affect the future of democracy and protection of human rights in Turkey and beyond.
Why the April 2017 referendum results were contested
International observers and domestic opposition groups raised serious concerns about the April 2017 referendum. Erdogan, running up against term limits, introduced a system in which he could serve three consecutive five-year terms. The result was an unparalleled presidential system, granting sweeping executive powers over the parliament and judiciary. The Venice Commission of the Council of Europe observed that the amendments represent “a dangerous step backwards in the constitutional democratic tradition of Turkey.”
The vote itself raised several red flags. The referendum was conducted under the state of emergency. Many journalists and members of parliament were jailed in the weeks before the vote, and the media increasingly controlled by Erdogan gave little voice to the remaining opposition. And, on the day of the referendum, the election board lifted a requirement that the ballot envelopes be double-stamped. The Organization for Security and Cooperation in Europe pointed out that this curious last-minute decision “undermined an important safeguard against fraud” and concluded that the referendum took place on an “unlevel playing field.”
The small margin (51 percent) by which the “yes” vote won further raised suspicions about the possible impact of the unstamped votes. Soon after the elections, the main opposition party, the Republican People’s Party cried foul.
Why the court rejected Turkey’s referendum case
The ECtHR’s convention refers to member states’ obligations to “hold free elections at reasonable intervals.” The court, however, contrived to dismiss the case: A referendum, it contended, is a different matter than an election.
The court’s reasoning is consistent with its previous case law, including a recent ruling regarding a Scottish independence referendum. The judges turned down the opportunity to reconsider their stance on referendums, despite other organizations’ questioning the Turkish referendum’s legitimacy.
In June’s snap elections, Turkish voters will again be casting their ballots during a state of emergency. A leading presidential candidate, Selahattin Demirtaş, is in jail. Unstamped envelopes will still be accepted as valid.
A changing approach to human rights violations in Turkey
The referendum is not the only Turkish claim on which the court has passed. Since the July 2016 coup attempt, 150,000 public service workers have been banned from their jobs by executive decrees. Under pressure from the Council of Europe, Turkey created an ad hoc commission that began to review applications related to the state of emergency in July 2017. The ECtHR dismissed the applications regarding the purges and directed them to the ad hoc commission. The special commission, however, is directly under executive control and is unlikely to adjudicate impartially. Legal scholars estimate that it may take as many as 10 years for an applicant to exhaust domestic remedies — a requirement before seeking justice at the ECtHR.
The ECtHR has not always been reticent in the face of systemic human rights violations. Throughout the 1990s and early 2000s, the court adjudicated on thousands of grave human rights violations committed against the Kurdish population in southeast Turkey, including forced disappearances and village burnings.
In a landmark 1996 case, the court lifted the exhaustion of domestic remedies requirement in light of the state’s condoning of or complicity in the crimes committed against the applicants. Had it applied the same logic to the post-coup-attempt cases, tens of thousands of cases could have been tried.
Why might the ECtHR be avoiding hot issues?
Recent research shows that the ECtHR’s retrenchment on Turkey is part of a larger trend. The court is less inclined to hold states responsible for new forms of human rights violations for two important reasons.
First, the court’s case law has grown exponentially in the past few decades. To reduce its caseload, the ECtHR has undergone several structural changes and encouraged states to address systemic violations themselves. However, the number of cases from Turkey repeatedly ranked one of the highest and Turkey remained a top violator. In 2016, cases from Turkey ranked second-highest, accounting for 16 percent of the court’s docket, with some 12,600 cases.
The court’s efforts to manage its docket may be coming at the expense of human rights. Reports by the European Union, Council of Europe institutions and international human rights organizations indicate that human rights violations have been occurring at an alarming rate during the state of emergency, that elections are not taking place in a democratic environment and that the recent purges and reforms have undermined judicial independence. Any presumption that human rights issues may be adjudicated in Turkey by independent tribunals within a reasonable time clearly contradicts these reports.
Second, the ECtHR is under mounting political pressure. Alongside outright noncompliance and public outcries from increasingly authoritarian countries such as Turkey, Russia and Hungary, the ECtHR has been under fire by liberal democracies as well. The United Kingdom, in particular, has been an avid critic of the court, with threats to leave it altogether. The court started to receive negative coverage in the British media and threats from politicians in response to the 2005 ruling on prisoners’ right to vote. And, indeed, the ECtHR is now showing more deference to liberal democracies, especially Britain, to appease backlash against its decisions. Its response to the recent case law from Turkey indicates that threats by authoritarian and populist leaders may have a similar effect on the court.
With the rise of right-wing populism across Europe, such changes in the court could undermine the international human rights system built in the aftermath of World War II. Refusing to adjudicate can carry as much weight as a ruling itself.
Filiz Kahraman is a postdoctoral research fellow at the Mortara Center for International Studies at Georgetown University.