Expression Interrupted

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ECtHR president pays controversial visit to Turkey

ECtHR president pays controversial visit to Turkey

Meeting with authorities in Ankara, Robert Spano receives honorary degree from Istanbul University, visits government appointed trustee in Mardin 


The President of the European Court of Human Rights (ECtHR) Robert Spano paid a controversial visit to Turkey at the invitation of the Minister of Justice Abdülhamit Gül from 3-6 September 2020.

Even though the speeches he gave throughout his visit contained messages on the rule of law, the independence of the judiciary and academic freedoms, the many cases from Turkey pending before the ECtHR, the exclusion of NGO’s and human rights organizations in his itinerary and his acceptance of an honorary doctorate from Istanbul University, which has unjustly dismissed numerous academics, sparked criticism.

Spano, who assumed the presidency of the ECtHR in May, besides President Recep Tayyip Erdoğan, Minister of Justice Abdülhamit Gül, the Speaker of the Parliament Mustafa Şentop, met with the presidents of the Constitutional Court, the Supreme Court of Appeals and the Council of State. 

Spano also attended the opening ceremony of the 24th Training Program for Candidate Judges and Prosecutors at the Justice Academy of Turkey.

Delivering a lecture at the ceremony, Spano emphasized the rule of law and the independence of the judiciary. Spano reminded that Turkey, a founding member of the Council of Europe, was one of the original signatories of the European Convention on Human Rights (ECHR).

“No one is above the law”

The ECtHR President stressed that the values concerning the rule of law, especially in relations between the individual and the state, center upon protecting individuals from arbitrariness: “In order for a person to be able to retain and nurture independence of thought, to be able to manage his or life as he or she wishes, to understand his or her communal responsibilities, to be able to strive for happiness, success and inner peace, all core elements of human existence, it must conceptually be of great importance that the society in which that person lives is governed by the force of law which is transparent, stable, foreseeable and allows for mechanisms of dispute resolution that are independent and impartial.”

Spano highlighted that sustained economic development and prosperity requires states to be governed by the rule of law: “A dysfunctional judiciary in a society which does not uphold the rule of law and human rights will not attract foreign investment.”

Spano said: “Those in power cannot therefore control the courts. Laws must not only apply to the populace, but also, and crucially to those that hold the reins of power at any given moment. No man or woman is above the law.”

Criticism to Constitutional Court 

Reminding that there are complaints and applications pending before the ECtHR concerning the detentions following the declaration of a state of emergency in Turkey in the aftermath of the 15 July coup attempt, Spano criticized the Constitutional Court for claiming in one of its recent judgments that Turkish courts were more qualified to assess matters relating to national law. 

In its April 2019 judgment concerning the application of former Constitutional Court judge Alparslan Altan, who was sentenced to 11 years and 3 months in prison for “membership of FETÖ/PDY,” the ECtHR held that Altan’s  pretrial detention was unlawful.

In a judgment in July 2020 concerning the application of judge Yıldırım Turan, who was also imprisoned on the charge of “FETÖ/PDY membership,” the Constitutional Court made numerous references to the ECtHR judgment in the Altan v. Turkey case but eventually rejected Turan’s application on the grounds that “the authority to interpret legal provisions concerning the members of the Turkish judiciary  belongs to public authorities of the Turkish Republic and eventually to Turkish courts.”

The Constitutional Court asserted in its judgment that “Although the ECtHR is authorized to review whether Turkish courts’ interpretations of national law violate the rights and freedoms enshrined in the Convention, the ECtHR should not act like a national court to interpret national law. Compared to the ECtHR, Turkish courts are more qualified to interpret provisions in Turkish law.”

Noting that the detention of judges is being strictly scrutinised by the ECtHR, Spano said: “Some of the language adopted by the Turkish Constitutional Court in a recent judgment does not seem to fully reflect the spirit of constructive judicial dialogue which we have come to expect between our Court and the highest superior courts,” adding that he would be discussing this matter within the context of judicial dialogue.

Spano did not issue an official statement following his 45-minute visit with President Erdoğan. However a Tweet posted on the ECtHR’s official Twitter account concerning the visit said that he “recalled that democracy, the rule of law and human rights are fundamental values of the Convention system to which Turkey is a part.”

During his visit with the President of the Constitutional Court, Spano emphasized the importance of “the independence of the judiciary, the rule of law, judicial dialogue and that national courts apply the criteria in the Strasbourg Court’s case-law.”

On the second day of his visit, Spano left Ankara for Istanbul and there he held a meeting with the President of the Istanbul Bar Association Mehmet Durakoğlu in which he “recalled the fundamental importance of the legal profession in upholding the rule of law.”

“Those in power cannot stifle freedom of speech”

On the same day Spano was awarded with an honorary doctorate from Istanbul University, which has dismissed several academics after the declaration of the state of emergency, reporters were not allowed to take footage of the ceremony. 

Delivering a speech at the ceremony, Spano emphasized the importance of academic freedoms and freedom of expression. Reminding that academic freedom is a right protected under the Convention, he said: “There can be no democracy without debate and dissent. Those in power cannot stifle freedom of speech.”

Event in Mardin with trustee and AKP official  

Following Ankara and Istanbul, Spano spent the weekend in Mardin with Turkish judge Saadet Yüksel, who accompanied him throughout his visit. Although no official information on his itinerary was given, from information published by the press and shared on social media it was seen that he met with Governor Mahmut Demirtaş, the government-appointed trustee of the Mardin Municipality, and Esengül Aydın Sancar, the president of the AKP Mardin Women’s Branch.

Demirtaş, the former governor of Adana, was appointed as a trustee to the Mardin Municipality through a decree on 10 June 2020. The Mardin Municipality has been run by trustees since the elected governor of Mardin from HDP, Ahmet Türk was replaced.

In a now-deleted Tweet posted over the weekend, Spano and judge Yüksel were pictured attending an event along with Demirtaş, Sancar and Cüneyt Yüksel, the brother of judge Yüksel and a former AKP deputy. The event took place at a school built by Yüksel’s deceased father, businessman Mehmet Edip Yüksel.

Reacting to the meeting in Mardin on her Twitter account, Başak Demirtaş, the wife of the imprisoned former co-chair of the Peoples’ Democratic Party (HDP) Selahattin Demirtaş, invited Spano to visit Diyarbakır too. Başak Demirtaş wrote: “Dear Judge Spano, President of the European Court of Human Rights, you met Turkey’s President, who did not implement the judgments your Court delivered, and other government officials. Finally, you met with the trustee of Mardin Municipality and the AKP Chair for Mardin. Mardin neighbors Diyarbakır. If you were our guest in Diyarbakır, I would be glad to inform you about the cases of politicians from the opposition party HDP --  including my husband Selahattin Demirtaş’s -- pending before the European Court of Human Rights. I have no doubt that you have had a chance to learn the position of the government from the authorities you have met. If you can spend an hour with me, it will be enough to inform you about our position.”

Reactions to the visit

Spano’s visit to Turkey, which according to a 2019 report by the Council of Europe (CoE) Committee of Ministers ranks second after Russia in failing to execute ECtHR judgements, drew domestic and international criticism.

Spano’s visit provoked reactions from Europe too. Criticizing Spano's meeting with Erdoğan, Kati Piri wrote: “Why is the highest judge of European Court of Human Rights meeting with President Erdoğan? Turkey has the most cases in front of the ECtHR. This visit has politicized ECtHR and greatly damaged its reputation.”

In a message addressed to Spano, the European Parliament's rapporteur for Turkey Nacho Sánchez Amor said, “President Spano of ECtHR are you aware of the backlog you have in Strasbourg?” and urged Spano to “avoid some unfortunate time consuming visits.”

Academics, journalists, politicians and non-governmental organizations addressed Spano before the visit took place, urging him to bring up issues such as the right to a fair trial, the implementation of ECtHR judgments and freedom of expression, criticizing him for agreeing to receive an honorary doctorate from Istanbul University. 

“People who dismissed academics will be giving you an honorary doctorate”

The first public reaction to Spano’s visit before his arrival came from Professor Mehmet Altan, the well-known journalist and academic who was dismissed by the Istanbul University and who unlawfully spent an extended period of time in pre-trial detention.

In his open letter addressed to Spano, Altan wrote: “Despite being acquitted, despite the judgments by the Constitutional Court and the ECtHR, I have not been able to return to my university where you will be receiving an honorary doctorate.  The people who will be giving you an honorary doctorate are the very people who dismissed me and many other academics. The university from which you will be receiving your doctorate, is “the accused institution” in the trials brought by many academics who were dismissed through a statutory decree as I was. These proceedings are ongoing and it is likely that they will also be brought before the ECtHR that you preside over. But in the meantime you will have become a Judge who has received an honorary doctorate from Istanbul University.”

“Visit Ahmet Altan in Silivri Prison”

Mehmet Altan and his brother Ahmet Altan’s lawyer Figen Albuga Çalıkuşu invited Spano to visit her client Ahmet Altan, who has been jailed since 2016 in the Silivri Prison and is about to mark four years behind bars this week.

Çalıkuşu wrote: “I would like to remind ECtHR president Robert Spano that he will be visiting a country where the pursuit of rights through the ECtHR under his presidency, of 70 year old Ahmet Altan, who is imprisoned for his writings, who is the only detained novelist in the world & whose works have been published in 23 countries, is being hindered. I would like to invite ECtHR president Robert Spano, who will be coming to Turkey under these circumstances at the invitation of the Ministry of Justice, a party in thousands of individual applications, to Silivri Prison to visit my client Ahmet Altan.

“No ECtHR President has made an official visit to Turkey as the guest of the Ministry of Justice. Robert Spano’s visit to Turkey as the president of the ECtHR, as the guest of the Ministry of Justice, will be a first. Considering Turkey comes second in the number of files pending before the ECtHR, this visit cannot be regarded as a routine visit to be brushed aside,” Çalıkuşu wrote, criticising Spano for agreeing to receive an honorary doctorate from Istanbul University. 

Çalıkuşu commented that Spano “receiving an honorary doctorate from Istanbul University which has arbitrarily dismissed hundreds of academics, will be a source of concern for thousands of applicants who are calling for the ECtHR to uphold their rights.”

“Will he be addressing freedom of expression?”

In an article he penned for T24 ahead of Spano’s visit, former ECtHR Judge Rıza Türmen wrote: 

“Spano is coming to Turkey immediately on the heels of the death of a lawyer, Ebru Timtik, who lost her life to a hunger strike. The hunger strike of another lawyer, Aytaç Ünsal, is continuing. Will Spano be able to bring this up and ask about members of the judiciary in this county who are ending their lives for their right to a fair trial? Or will he think, ‘These are sinister subjects, they will spoil the mood of the visit. Better not bring it up at all.’ Wll Mr Spano say, ‘Osman Kavala has been imprisoned for 3 years. There is ECtHR’s judgement which has become final, declaring that he was arbitrarily detained over political motivations to be silenced and urging for him to immediately be released. But you do not implement the judgment. By inventing new accusations to not implement it, you prolong the detention. What kind of a state of law is this? Likewise there is the judgment on Selahattin Demirtaş. The Chamber’s judgment says the detention of Demirtaş was politically motivated and he should be released immediately. This judgment was not implemented either. Now we are waiting for the Grand Chamber’s judgment. If the Grand Chamber delivers in line with the lower Chamber will you be implementing the decision?’ Or will he say, ‘Demirtaş has been sentenced on another crime, he is no longer detained, he is convicted? It appears that you have found a new method to ignore implementing ECtHR’s judgments concerning personal liberty. You immediately detain the person over a different crime or you convict them. In this way, you skirt around the judgments given by the ECtHR. This is unacceptable.’ During his meetings with authorities, will he address freedom of expression?”

“Meet with human rights organizations too”

In an open letter addressed to Spano, the Human Rights Association (İHD) called on Spano to not limit his meetings to government officials but to also meet with law and human rights institutions during his time in Turkey. Concerning Spano solely addressing state institutions during his visit under the current circumstances the letter said, “May mean that you condone all that has been happening. This state of affairs becomes even more alarming when one takes into account the institutions you will be speaking at within the scope of your visit.”

Regarding Spano’s visit, the Turkey Representative for Reporters Without Borders (RSF) Erol Önderoğlu said: “We hope that his visit will not exacerbate ECtHR’s  issues with ‘impartiality’ in Turkey, which has been going on for the past 5 years, any further; that it will not prove the worries that this will legitimize future violations right.”

“An honorary doctorate would raise questions on your impartiality”

Peoples’ Democratic Party (HDP) Parliamentary Group Deputy Chair Meral Danış Beştaş also commented on Spano’s visit: “We openly say to ECtHR President; the regime’s doctorate is incompatible with the Presidency of the ECtHR, you must reject this doctorate. Pending before you are pressing applications concerning Turkey, there are requests concerning the right to live, to a fair trial, torture. You cannot be accepting an honorary doctorate while you are the presiding judge of an international court which will be deliberating on these files. This would raise profound questions on your impartiality.

“Another important point is that İstanbul University is a school which is responsible for the dismissal of hundreds of academics. The same university had previously given an honorary doctorate to Kenan Evren [who led Turkey’s September 1980 coup], need I say more? It is only a matter of time before the dismissals with a statutory decree arrive at the ECtHR and they may at any moment. For this reason I am not sure how gratifying it is for the ECtHR president to become an honorary member of a university that unjustly dismissed hundreds of academics, condemning them to poverty and unemployment? On the immunity files of HDP, our application concerning the changes in the Constitution being in violation of the ECHR, has not been reviewed for four-and-a-half years. A coup was launched at the highest ranks on democratic politics, a legal party, on our party and ECtHR has not ruled on any of it except for on Demirtaş’s file. In addition, the Committee of Ministers took no action against Turkey, Turkey was not sanctioned in any way, even though the judgment concerning Demirtaş was not implemented and Yüksekdağ and Demirtaş are imprisoned over fabricated evidence and detentions. For this reason ECtHR should not engage in ‘trading’ law with Turkey.”