For Turkey's Purged, ECHR Ruling Offers No Remedy
By: Abdullah Ayasun
Tags: Echr, Justice, World, Politics, Turkey

Justice and Politics

For Turkey’s Purge Victims, ECHR Ruling Creates Both Hope and Dismay

While the ECHR ruling establishes that the rights of purge victims were violated in Turkey after the coup, it unwittingly justifies the entire legal context of the emergency rule. Abdullah Ayasun Follow Dec 25, 2020 · 10 min read

The European Court of Human Rights in a session. (Photo Courtesy: ECHR)

In a landmark decision that could set a precedent, the European Court of Human Rights (ECHR) unanimously ruled last week that the rights of a purge victim, Hamit Piskin, were violated by the Turkish authorities in the aftermath of 2016. The outcome has generated mixed reactions across Turkey. As observers and purge victims were braced for the long-anticipated ruling, it not only created a glimmer of hope but also radiated anxiety over the long-term implications for the ongoing trials in Turkey.

While many embraced it as a welcoming step vindicating the gross violations that took place during the sweeping purge, some exercised caution. Several Turkish legal experts, who command a decent understanding of the details, even exuded an unconcealed sense of dismay over the ECHR’s not-so-subtle justification of the legal context of the emergency rule itself.

After exhaustion of domestic channels for legal remedy, Piskin brought his case to the Strasbourg-based court in 2018 in an abiding quest for justice. After a two-year review of the case, the court reached a verdict last week. Although the verdict was welcomed by many victims (numbering more than 150,000 who were summarily discharged from public service without any semblance of due process), the ECHR ruling contains significant controversial points that would eventually play in favor of the Turkish government, which used the emergency rule as the legal pretext to deal with a plethora of matters concerning the dismissed public workers.

The Ruling

CASE OF PİŞKİN v. TURKEY

(Application no. 33399/18)

JUDGMENT Art 6 § 1 (civil) • Fair hearing • Art 8 • Private life • Inadequate judicial review of the dismissal of an employee in a public institute, under an emergency legislative decree, for his alleged ties to a terrorist organisation regarded as the instigator of the attempted coup of 15 July 2016 • Dismissal authorised under a non-adversarial simplified procedure, without procedural safeguards or individualised summary of the reasoning • Stigmatisation and serious impact on the applicant’s professional and social reputation • Absence of a thorough and serious investigation by the domestic courts Art 15 • Failure to comply with the requirements of a fair hearing, unjustified by the derogation in time of emergency • Simplified dismissal procedure that could be justified in the light of the very special circumstances of the emergency • Emergency legislative decree that did not clearly and explicitly rule out judicial review of the measures taken for its implementation (ECHR)

The ECHR decision lays out the rationale of its verdict to illustrate why and how the violations took place. But even this ruling, according to experts, is not without significant downsides.

Legal expert Kerem Altiparmak, one of the purged academics, laments about the contradictions inherent in the ECHR ruling. He slammed the court for legitimizing the government’s emergency regime practices. For him, the court does not problematize the legal landscape and context in which the government rolled out its policies in blatant violation of the international norms regulating the legal boundaries of a state of emergency.

In the case of an immediate national security threat against the democratically-elected government, international laws allow civilian authorities to bypass some of the legal routines of the national law for a definitive period. In this context, governments declare emergency rule to cope with the threats that would not be contained within the scope of existing procedures. After multiple attacks that killed hundreds of people in 2015, France put an emergency rule in place. When the French authorities reasoned that the multitude of challenges began to recede in posing significant security threats, it gradually removed the pillars of the emergency regime later. Even when it was in place for the span of two years, Paris never compromised the liberties of its citizens.

In 2016, the Turkish government declared a three-month emergency five days after an abortive coup attempt on July 15. For the next two years, the government ruled the country with emergency decrees, which had the full force of law, instead of enacting legislation through Turkish Parliament. This bypassing of the legislative body enabled the government to fire more than 150,000 public servants without much fuss from the parliamentary opposition. But the Turkish government did not heed the requirements set by the U.N. and other relevant international norms that restrict arbitrary invocation of emergency powers by national authorities. Judging by how the government exploited the broad powers of the emergency regime, Ankara faced credible accusations of widespread rights violations during this period.

Devil Hidden in Details

In a back and forth conversation about the semantics of the ruling, Yavuz Aydin, a purged judge who lives in Belgium, weighed on the pros and cons of the ECHR verdict. For him, the Piskin ruling contains a silver lining that enables him to harbor a measured hope without entirely abandoning a healthy degree of skepticism when he further ponders about its potential ramifications for thousands of ongoing trials in Turkey.

“For instance, it is important that a violation has been discovered in this case although his [Piskin] working elsewhere was officially inhibited. In the case of KHKs, this is in place officially.”

“For those who have not faced any prosecution or who have a verdict of non-prosecution,” Aydin told me, “it is a very positive ruling.”

His assessment, however, contains a caveat. “But for those who face a criminal investigation and who had been sacked on the ground of that investigation, it is a really problematic decision.”

This has ominous implications for post-coup trials in Turkey. Aydin thinks that it would allow the Turkish authorities to tamper with the materials in cases, probes, or during hearings to make them look like evidence deliberately intended for the audience at ECHR. If the government, he reasons, somehow proves that such materials are properly debated during the trial, then it is most likely that the ECHR would not see any wrongdoing or violation about that case at all.

Even if there is a violation ruling at the ECHR regarding a case about a lifelong ban for public service a Turkish public worker gets in Turkey, it would take 10 years for the composition of a ruling.

The tormented process that awaits Turkish applicants had previously been pronounced by Omer Faruk Gergerlioglu, a lawmaker from pro-Kurdish People’s Democracy (HDP), three years ago. Only a year after the government launched a sweeping purge that saw the dismissal of no less than 150,000 public workers over loosely-applied terrorism and coup-related charges, the government established a seven-men commission ostensibly designed to offer an early remedy by re-examination of the complaints submitted by the sacked workers. From the start, Gergerlioglu presciently wrote off the OHAL commission as a sinister ploy by the government intended to serve as a window-dressing to deflect international criticism and to dodge the entire appeal process.

The European bodies, for the fear of being overwhelmed by applications from tens of thousands of Turkish citizens, addressed the exhaustion of domestic legal channels, including the OHAL Commission, for the aspirants who might be tempted to seek ways to move their legal cases beyond Turkey. Gergerlioglu noted that it would take at least 10 years for the commission to entirely and adequately process the appeals lodged by dismissed public servants.

Against this backdrop, it is worth noting that the ECHR ruling in the Piskin case took place in an expedited fashion, faster than beyond many anticipated. What enabled the fast processing of the Piskin ruling, Aydin contends, was the fact that the worker had a private contract with the government, designed in accordance with private sector regulations.

Piskin immediately brought his case to a labor court. According to the Turkish laws governing conditions of employment, termination of contracts, and dismissals of workers, a case regarding the termination of a contract must be held at the labor court within no later than six months at last. Aydin also reminds that the department at the Supreme Court also fast-tracks appeals submitted by applicants after the labor court stage. After an expedited process, the Constitutional Court also shortens the amount of time when it reviews contractor cases following the step taken by the Supreme Court.

All this, Aydin chronicles, led up to the application by Piskin at the ECHR in 2018 where ‘termination of the contract without a valid reason’ constituted the violation by the Turkish government of Piskin’s basic employment rights.

ECHR and Turkey’s Emergency Regime

Both Altiparmak and Aydin emphasize that the situation concerning the public servants sacked by the government is an entirely different story with a different set of channels and procedures with a time schedule expectedly longer than the Piskin ruling. For a dismissed public worker to reach ECHR, he/she first needs to apply to the OHAL Commission for review of his/her case. After then, an administrative court enters the equation, then Council of State. And the Constitutional Court appears as the last resort of legal remedy in the domestic realm. After the exhaustion of all these channels without a plausible and satisfying result, then a Turkish purge victim may throw his/her lot at the Strasbourg-based court whose workings are not independent of the tangled context of international politics.

In a series of tweets, Altiparmak dissected the web of contradictions intrinsic to the ECHR ruling. For him, the upshot of the matter is that the ECHR’s examination of the Piskin case takes place without questioning the legal basis of the entire emergency regime.

“The ECHR says there is a legal basis for the procedure [probe] based on the emergency decree,” he wrote on Twitter. The emergency decrees were not just designed for a specific period of time that would expire once the state of emergency ends. They were invoked both backward and upward, well exceeding beyond the time restraints normally attached to the duration of the emergency rule.

As if this were not enough, the government was not able to show how the rule was applied in a concrete case nor could it explain what these concepts correspond to in general. According to the ECHR, none of these is a problem, the state of the emergency decree is the legal basis. (para.207) Only Judge Koskello is against this vs. (Kerem Altiparmak)

But what constitutes the gist of the matter is the fact that the ECHR takes the emergency decrees for granted as legitimate legal documents. Despite the fact that the decrees’ effect has far surpassed beyond the expiration of the emergency rule and they were retrospectively invoked for matters that preceded the initial declaration of the emergency mechanism, the ECHR did not problematize any of this from a legal angle. This, Altiparmak emphasized, represents the most crucial point of the decision.

“According to the court, dismissal by administrative decision in a state of emergency is not a problem either,” the dismissed academic noted.

Why does this matter?

If the matter, as Altiparmak pointedly demonstrated, only concerned several people for exposure to government measures in the post-coup era, it could be understood to some degree. But if there are 150,000 or so people, who have been arbitrarily sacked by legally controversial measures, in the debate we have, then there is a need for a pause for further pondering.

The way how the Turkish government interpreted and implemented emergency decrees has no legal precedent in history. Yet, it eluded the attention of the ECHR, which apparently countenanced the burning of the entire woods for the pretense of saving a single tree through the establishment of shortcomings by narrowly focusing on the technical modalities of labor law.

According to the views presented above, it can be extrapolated that without a wholesale assessment of the entire emergency regime from a legal and normative perspective, no ruling would offer a true prospect for a remedy for Turkey’s purge victims, at home or abroad.

For those who somehow would be able to bring cases against the OHAL Commission at the ECHR, there are at least 12 or 15 years ahead for the conclusion of their cases. Similar rulings in the mold of the Piskin case would be made 20 years after the purge of Turkey’s public workers, the professor contended. This reveals the tormented nature of legal machinations at the heart of Europe’s main court that is supposed to tackle political persecution and widespread human rights violations in certain member countries where domestic legal mechanisms are regarded as inefficient and politically-suppressed for delivering justice to the victims.

Needless to say that, the ECHR has already bogged down in a backlog of international cases. Its working system has come under increasing strain after unflinching pressure from the autocratic countries. Add to that, the ever-present threat of new thousands of applications from Russia and Turkey plays a deterring role for the ECHR. No matter how understandable its reasons might be, the court’s willingness to lend a veneer of legitimacy to the emergency measures that throttled the most basic pillars of rule of law is unforgivable. It amounts to condemning purge victims to their fate in Turkey’s judicial system, which is increasingly subdued as a rubber-stamp by the government with regards to the state of the KHK community.

Altiparmark’s conclusion tells it all: