, suspension of its membership in the Council of Europe, or complete expulsion from the Council—the so-called “nuclear option.”){kind=link}
Possible sanctions include deprivation of voting rights in the Parliamentary Assembly of the Council of Europe (PACE), suspension of its membership in the Council of Europe, or complete expulsion from the Council—the so-called “nuclear option.” By Yavuz Aydın in Free Turkish Press on June 27, 2023.
This June, Strasbourg is where Erdoğan’s staff sweat the most.
First, the Ambassadors to the Committee of Delegates for the Council of Europe, issued its strongest warning yet as part of the follow-up to the infringement process that was initiated after Erdoğan refused to implement the European Court of Human Rights’ (ECtHR) ruling on Osman Kavala.
The warning reminded Turkey that its extension from the March meeting would expire in September, emphasizing that a second violation procedure might be initiated in response to the Selahattin Demirtaşjudgement.
The infringement procedure for the Kavala verdict, which was initiated in November, has put Turkey at risk of being subjected to the most severe sanctions possible under the Council of Europe’s system.
Possible sanctions include deprivation of voting rights in the Parliamentary Assembly of the Council of Europe (PACE), suspension of its membership in the Council of Europe, or complete expulsion from the Council—the so-called “nuclear option.”
A similar infringement process has previously only been used against Azerbaijan in relation to the ECtHR’s judgement on Ilgar Mamadov, which ended after three years with Mamadov’s release.
In its response to the Committee of Ministers regarding the Kavala and Demirtaş cases—in addition to its usual platitudes about the independence of Turkish courts—Ankara pointed out that the members elected by Parliament to the Council of Judges and Prosecutors (HSK) in 2021 were elected with the full cooperation of the opposition CHP and IYI Parties.
This strategic mistake made by the opposition—under the guidance of the Association for Unity in the Judiciary—is therefore being used by the government to legitimize its use of the judiciary as a political weapon.
Another argument of Erdoğan’s government is that if a judge causes a negative decision before the ECtHR, this issue is taken into account as a negative factor by the Council of Judges and Prosecutors (HSK) in the promotion of that judge. This defense is not only detached from reality, but also contains many contradictions within itself.
First, it should be noted that the most important common feature of the Kavala and Demirtaş cases is that the ECtHR found both to be in violation of Article 18—i.e. that judicial authorities had made politically-motivated decisions under the influence of politics. These judgments are the first two examples in Turkish history the ECtHR found violations of Article 18.
Therefore, it is tragicomic to argue for the “independence of the judiciary” in Turkey as a defense, especially after these two judgments.
As for the government’s defense that the High Council of Judges and Prosecutors (HSK) considers the ECtHR’s violation judgments as a negative criterion for the promotion of judges and prosecutors, it is enough to recall the names of Akın Gürlek, Hasan Yılmaz and İrfan Fidan and how the ECtHR decisions effected their promotion.
Akın Gürlek, the judge who signed both the Kavala and Demirtaş rulings, was reappointed as Deputy Minister of Justice last week, a position he has held since 2022.
Hasan Yılmaz, who prepared the indictment in both cases, was reappointed to the positions he had occupied as Deputy Minister and HSK member since 2020.
İrfan Fidan, who was in charge of these investigations as Istanbul Chief Prosecutor, and whose signature is on the indictments, was first elected as a member of the Court of Cassation by the HSK on 27 November 2020, and was hastily elected as a justice of the Constitutional Court on 17 December 2020—“the fastest rising judge” in history.
Thus, ironically, İrfan Fidan now will as a member of the Constitutional Court evaluate the decision rendered in line with the indictment he prepared a few years ago. Here is an “independent” and “impartial” judiciary!
In addition to these developments in the infringement procedure, the second important development in Strasbourg was the meeting on June 21st of the presidents of the International Association of Judges, the European Association of Judges and European Judges for Democracy and Freedoms (MEDEL).
The meeting at PACE ended with a statement asserting that the consequences of ignoring lawlessness in Turkey for the sake of realpolitik calculations have eroded respect for law and democracy in all 46 member states, as well as the credibility of the Council’s organs.
The highest levels of judges’ organizations in Europe and around the world also sent a message of support for the legal struggle of the thousands of judges in Turkey who were declared terrorists overnight following the attempted coup in 2016.
These statements, made in front of parliamentarians from Council of Europe member states, as well as many bureaucrats and diplomats, are important.
But what makes this program noteworthy is the fact that PACEhosted it, despite efforts and threats by Turkish parliamentarians, ambassadors and diplomats to prevent it.
The fact that a judge from YARSAV, a civil union of judges declared terrorists by Erdoğan’s government, spoke at the program was an indication that the Turkish government’s arguments were not taken into account. It was also interpreted as Hakan Fidan’s first defeat as foreign minister.
The third important development was the adoption of the resolution “Preventing Transnational Repression as a Threat to Human Rights” and its accompanying report, which were put to a vote in the PACE General Assembly on June 23rd.
The resolution and report focus on the repression, intimidation, threats, and abductions of dissident citizens abroad by Russia and Turkey.
Citing Freedom House data, the resolution explicitly states that Turkey is one of the most prolific perpetrators of transnational repression along with China, the Russian Federation, Egypt, and Tajikistan. During the voting session at the PACE plenary, it was stressed that Turkey is the only country on the list that is a member of the Council of Europe, and that PACE must not be in denial of the “rotten apple” in its own midst.
The report also devotes a special paragraph to the application made by the Turkish Tribunal and MEDEL (“European Judges for Democracy and Freedoms”) to the International Criminal Court in The Hague (ICC) against Erdoğan’s government. Such a prestigious report is not likely to be ignored by the prosecutors of the ICC while making a decision about the application before them.
Apart from being the second country in the history of the 46-member Council to be subjected to a violation procedure, Turkey, once proud of being one of the founding members of the Council of Europe, has achieved other “successes” in the last 6 years.
For example, it is the first and only country in the history of the Council of Europe to be demoted to “monitoring” status due to the destruction of the separation of powers. Turkey also remains the “champion” in number of cases pending before the ECtHR.
Turkey is also the first and only country to leave the Istanbul Convention, of which it was the first signatory. Turkey is also the only Council of Europe member to be placed on the “Grey List” by the Financial Action Task Force (FATF) due to problems in its judicial and supervisory mechanisms. When making predictions about possible developments in Strasbourg in September regarding the infringement process, these developments—which constitute a complete free fall in other aspects of our Council of Europe membership—should be taken into account as a whole.
Depending on the developments in Ukraine and the European Migration Pact, the response to the government’s stalling tactics in September has become a credibility test not only for Turkey, but for the Council of Europe as a whole.