Secretary-General of the Council of Europe (CoE) Thorbjørn Jagland, known in Turkey as President Recep Tayyip Erdoğan’s man, will on Monday be giving a farewell speech at the European Court of Human Rights (ECtHR). His legacy with respect to member state Turkey, where massive rights violations have taken place, will follow him for years to come.
Obviously, a ceremonial speech underlining the importance of human rights, rule of law and democracy would not be surprising to attendees. However, he will be remembered as the man who preferred to focus on the annual contributions of member states, the budget and the financial needs of the CoE. When considering the CoE’s history, historians are sure to have one debate: whether Jagland was simply one of the worst CoE secretaries-general, or if he wins the gold medal for his ties to the authoritarian leaders of the time.
It is obvious that Turks will remember him as a European official serving the interests of an Islamist dictator, not a human rights defender. Under his watch the failure of the ECtHR, a CoE institution, to put Turkey on notice for massive human rights violations is being discussed today to an extent never before seen.
During Jagland’s term in office the CoE and its institutions lost their credibility and reputation in the eyes of journalists, human rights defenders, civil society organizations and the people of Turkey. Under his watch Turkey become the largest prison for journalists in not only in Europe but in the entire world.
Jagland has effectively turned a blind eye to Erdoğan’s blatant human rights violations and anti-democratic rule since 2013, when Erdoğan was incriminated in major corruption investigations. One would have expected to him to be a vocal critic of the Erdoğan regime when the crackdown on all segments of Turkish society accelerated in the aftermath of a failed coup on July 15, 2016, which many believe was a false flag orchestrated by Erdoğan himself to set up the opposition for mass persecution. Instead of taking the challenge head-on to tackle human rights violations, Jagland suggested the Turkish government establish a commission to review emergency decrees and to address the grievances of people complaining about their treatment under the decrees. Then, Turkey’s State of Emergency Inquiry Commission (OHAL) has become the main tool of the Turkish judicial system to suppress Erdoğan critics.
The ECtHR, under pressure from the secretariat and the heat from from budget woes, considered the OHAL an effective domestic remedy “available” in every individual case, despite the level of marked reluctance at the national level, in its earlier judgments on violations in Turkey after the coup attempt.
Following the coup attempt, over half a million people were detained under the country’s abusive anti-terror laws, many of whom were subjected to torture and ill treatment in detention facilities and prisons. In addition to some 200 journalists, dozens of current and former MPs and academics and thousands of judges were imprisoned, and millions were labeled as “terrorists” by President Erdoğan.
Despite campaigns of human rights organizations against the crackdown in Turkey, Secretary-General Jagland remained silent and did not resist the pressure of the Erdoğan regime, allowing it to veto CoE initiatives to explore the political atmosphere in Turkey after the coup attempt. Due to Jagland’s hypocritical attitude, the report of a European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visit to Turkey in 2016 was not published at the time and still has not been published by the CoE.
Similarly, the ECtHR has consistently failed to examine the substance of allegations of large-scale human rights violations including but not limited to dismissals, systematic torture in detention centers and prisons, and the arrest of journalists, judges, academics and others on fabricated charges. Instead, the Strasbourg court has adopted a narrow approach in order to reduce the overwhelming number of pending cases before it. It merely cherry-picked some cases for the sake of appearances. In the case of jailed journalists, which Jagland pledged would be given priority, the ECtHR issued contradictory decisions in accepting some and rejecting others.
After a purge of some 130,000 civil servants and mass arrests on fabricated terrorism charges, a growing number of victims have started to apply to the ECtHR to receive some sort of justice for their grievances. In a flawed deal with the CoE, the Turkish government set up the aforementioned OHAL in January 2017 as an interim mechanism to review dismissal decisions taken by executive decrees. However, the commission functioned merely as a kind of formality and rubber-stamped the government’s executive decisions in most cases. In the meantime, the ECtHR’s requirement of the “exhaustion of domestic remedies” in order to accept applications has delayed the justice victims have sought as most applications to the ECtHR were rejected.
The decision of Köksal v. Turkey set a precedent for the rejection of countless further ECtHR applications. The case concerns a teacher’s dismissal by Emergency Decree No. 672, along with other public servants who were regarded as having membership in or an affiliation, link or connection with the Gülen movement, a civic group that is critical of the government. The court dismissed the application for failure to exhaust domestic remedies, finding that a new remedy — the OHAL Commission — was available to the applicant, provided by Emergency Decree No. 685, which was adopted on January 2, 2017.
However, there was considerable confusion as to the availability or accessibility of domestic remedies in the months leading up to the creation of the commission. The Constitutional Court, the highest court in the country, held in a number of judgments that it had no jurisdiction to examine the constitutionality of emergency decrees enacted during a state of emergency that was declared by the government in the aftermath of the failed coup on July 15, 2016. The administrative courts also rejected numerous cases concerning the dismissal of public servants directly by emergency decrees, holding that the emergency decrees function as laws (not administrative actions) and therefore are not subject to judicial review by administrative courts. Furthermore, in 2016 Council of Europe Commissioner for Human Rights Nils Muižnieks noted that he was informed personally by Turkish Minister of Justice Bekir Bozdağ that persons whose names were annexed to decrees are considered to be dismissed by a law and therefore do not have access to a judicial remedy.
The right to an effective remedy, as guaranteed under Article 13 of the European Convention on Human Rights (ECHR), is one of the most vital provisions in the Strasbourg system of human rights oversight. Measures undertaken by the Turkish authorities to date do indeed suggest that the post-coup measures have reached an unprecedented level, targeting a wide swath of economic, social and cultural rights, and civil and political rights. It seems that the court – by requiring Turkish applicants to first seek domestic remedies – is elevating form over substance, in effect depriving them of any realistic opportunity to seek meaningful justice.