‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Friday, 18 November 2016

Mercan v. Turkey: ECtHR rejects first case of Turkish judge after attempted coup d’état of 15 July 2016

On 15 July 2016, a coup d'état was attempted in Turkey against state institutions, including, but not limited to the government and President Recep Tayyip Erdoğan. The attempt was carried out by a faction within the Turkish Armed Forces that organized themselves as the Peace at Home Council. They attempted to seize control of several key places in Ankara, Istanbul, and elsewhere, but failed to do so after forces loyal to the state defeated them. Tens of thousands of judges, prosecutors, police, military personnel, teachers, journalists and others have been arrested since the failed coup on suspicion of links to FETO, which is said to be behind a long-running campaign to overthrow the state through the infiltration of Turkish institutions.

International reaction

Reactions to the event were largely against the coup attempt, both domestically and internationally. The main opposition parties in Turkey condemned the attempt, while several international leaders—such as those from the United States, NATO, the European Union, and other neighboring countries—called for "respect of the democratic institutions in Turkey and its elected officials." The Venice Commission’s president Gianni Buquicchio strongly condemned the attempted coup d’état in Turkey and underlined that any changes in the government must follow democratic channels:
“At the same time, I am alarmed by the Turkish media reports: since the failed coup, two judges of the Constitutional Court and five members of the High Council of Judges and Prosecutors have been arrested. More than 2700 judges have been suspended and many have been detained. I am convinced that especially while reacting to a violent attempt to overthrow an elected government, it is essential to respect the rule of law. Mass dismissals and arrests of judges are not an acceptable means to restore democracy. As any citizen, each judge has the right to a fair procedure - disciplinary and/or criminal - during which his or her responsibility must be duly proved and his or her defence rights must be respected.”
Not only the Venice Commission but also the Consultative Council of European Judges, the European Network of Councils for the judiciary  (ENCJ) and the International Association of Judges (IAJ) condemned the infringements of judicial independence and impartiality in Turkey. The ENCJ commented:
"The ENCJ is gravely concerned by the reports that over 2700 judges and prosecutors were suspended and/or dismissed by the High Council for Judges and Prosecutors only hours after the terrible events happened. A number of judges that were member of the High Council of Judges and Prosecutors appear to be among those suspended from office. Further reports seem to indicate that a vast number of judges and prosecutors were subsequently detained.
Current events give reason to believe that a further purge of the judiciary is taking place under the pretext of the failed coup attempt.  The ENCJ reiterates its call to the Turkish Authorities to respect fully the main principles that guarantee the independence of judges and the principles of due process for all those affected." 
Christophe Regnard, President of the International Association of Judges: 
"It is clear that in recent years, in fact after the judicial procedures for corruption were initiated against those close to President (then Prime Minister) Erdoğan, that the Turkish executive has constantly restricted the independence of the judiciary, despite its pledge to democracy. Since the failed coup d’état of July 2016, which must of course be strongly condemned, the independence of the judiciary has unfortunately disappeared from Turkey! The infringements of the standards of judicial independence and impartiality in Turkey are not new. They have not started after the failed coup d’état, which is being used to justify a massive purge in the judiciary and the eradication of all those who have opposed the executive at one time or another (judges, lawyers, journalists, academics…)."
Case of Mercan v. Turkey

On 17 November 2016 in the case of Mercan v. Turkey the ECtHR rejected an application concerning the lawfulness of a judge’s pre-trial detention following the coup d’état for failure to exhaust domestic remedies. The case concerned the pre-trial detention of a judge who was dismissed from office following the attempted coup d’état of 15 July 2016. Zeynep Mercan, a judge from Giresun, a city on Turkey’s Black Sea coast, was accused of links to the Fetullah Terrorist Organization (FETO), said to have orchestrated the attempted coup in which 246 people were martyred. She lodged a case with the Strasbourg-based court to say her arrest and detention had breached European Convention on Human Rights articles on the prohibition of torture, the right to liberty and security and the right to a fair trial.

Exhaustion of remedies

Much is unclear about the current situation in Turkey. And many questions about the detained judges are unanswered. Therefore the first judgment of the ECtHR on the lawfulness of judges' detentions was awaited with some impatience. 

The first question the Court had to answer was if Ms Mercan had exhausted domestic remedies. Article 35 § 1 ECHR (Admissibility criteria) provides that the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. There are however limits on the application of the rule. For example in cases where requiring the applicant to use a particular remedy would be unreasonable in practice and would constitute a disproportionate obstacle to the effective exercise of the right of individual application under Article 34 of the Convention, the Court concludes that the applicant is dispensed from that requirement. In the case of Salah Sheekh v. the Netherlands the ECtHR held:

121. (-) “The obligation to exhaust domestic remedies is, however, limited to making use of those remedies which are likely to be effective and available in that their existence is sufficiently certain and they are capable of redressing directly the alleged violation of the Convention. An applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case‑law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail.”
Rejection of the complaint

The Court however rejected Ms Mercan’s complaint regarding the conditions of detention for failure to exhaust domestic remedies. Ms Mercan was required to lodge an individual application with the Constitutional Court with regard to her complaint concerning the lawfulness and duration of her pre-trial detention, which she had not done in the present case. The Court saw no special circumstance which could have dispensed Ms Mercan from the obligation to apply to the Constitutional Court, and found that the applicant had failed to take appropriate steps to enable the national courts to fulfil their fundamental role in the Convention protection system, that of the European Court being subsidiary to theirs. In addition, since Ms Mercan’s placement in pre-trial detention was not a measure that had been adopted by legislative decree in the context of the state of emergency, the Court considered that Ms Mercan’s argument that it was impossible for her to appeal against her placement in detention was unfounded. 

Lack of evidence

In this case the Court considered that the arguments submitted by the applicant not such as to cast doubt on the effectiveness of an application of this type to the Constitutional Court, noting that Ms Mercan’s fears as to the impartiality of the Constitutional Court’s judges - prima facie - did not in themselves relieve her of the obligation to lodge an application before that court. The 'mere'  fact that, as Ms Mercan had pointed out to the Strasbourg Court, two members of the Constitutional Court after the attempted coup were also arrested and detained in Turkey, was insufficient evidence for the ECtHR to hold that the available remedy to Ms Mercan was bound to fail because of a biased court. Moreover the ECtHR - in a rather unconvincing way - considered that in its judgment of 25 February 2016, concerning journalists E.G. and C.D., the Constitutional Court had found that the placement of the two journalists in pre-trial detention was in breach of Article 19 § 3 of the Constitution and that the need to deprive the journalists of their liberty had not been shown. This decision of the Constitutional Court however - taken months before the attempted coup and the arrest of two of that courts member - hardly explains why since the attempted coup there is no reason for the applicant to fear for a biased Constitutional Court. 

Pending cases

Many other cases of members of trade unions and non-governmental organisations, journalists and lawyers are now pending in Strasbourg. The court has so far registered over 3,000 complaints over the issue, and this number is expected to rise. Following the failed coup, there has been a widescale crackdown in Turkey on any officials, politicians, police, military, academicsand journalists, among others, thought to have ties to the Gulen movement. New applicants will have to prove that domestic remedies are not - effectively - available. In most of these cases therefore the Government are invited by the ECtHR to submit copies of files including all documents relating to the reasons for the applicants’ arrest, detention in police custody and pre-trial detention. Unlike in Ms Mercan's case the Court has asked specific questions to the parties involved, including whether an individual application to the Constitutional Court was an effective remedy and if the investigation files contain facts and information which would satisfy an objective observer that the applicants might have committed the alleged offences?

Turkish judiciary in a state of emergency

It is quite surprising that these questions were not asked to the parties in Ms Mercan's case. This is the first case to be considered in Strasbourg after the Turkish crackdown. But the case was given importance level 3 by the ECtHR, meaning that it is a decision of "little legal interest simply applying existing case-law." In this case little attention has been paid to legitimate worries about the state of the Rule of Law in the aftermath of the attempted coup in Turkey, that were worldwide expressed. In my view the issue of non-exhaustion of remedies in Turkey at this moment deserves more and more careful consideration. The Turkish judiciary is in a state of emergency.

Also see: Ulaş Karan, Mercan v. Turkey: Waiting for the Last Word of the Turkish Constitutional Court

Update: ENCJ votes to suspend the Turkish High Council for Judges and Prosecutors

Marc de Werd
Judge in the Amsterdam Court of Appeal (Netherlands)
Professor of European Justice at Maastricht University

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