ECHR president faces test of honour in Turkey

Róbert Spanó, president of the European Court of Human Rights, is set to pay a two-day visit to Turkey, where he will give a lecture at the Justice Academy (TJA), upon the invitation of Turkish Justice Minister Abdulhamit Gül. This announcement, along with reports that he may receive an honorary doctorate in law from Istanbul University, has sparked a hot debate on whether it is appropriate for a judge presiding over the highest court in Europe overseeing and guaranteeing fundamental human rights in the face of arbitrariness and oppression in countries like Turkey.

President Spanó is certainly aware of the deterioration of rule of law in Turkey. As a man of honour who has been adjudicating on Turkey-related files at the ECHR for years, the purpose of his visit cannot be thought of as anything other than openly and courageously shouting out facts in the faces of government authorities. Such a visit should have taken place much earlier, and Spanó deserves praise and support in what appears to be a veritable mission impossible.

The ECHR president knows very well that the government in Turkey translates to a one-man rule by President Recep Tayyip Erdoğan since the constitutional amendment of 2017. As openly criticised by the Venice Commission, Spanó knows that the separation of powers and judicial independence no longer exists in Turkey. Besides this, he cannot be unaware of Resolution 2156(2017) of the Parliamentary Assembly of the Council of Europe, which downgraded Turkey to the league of countries under monitoring status for the first time in European history. This decision implies that Turkey no longer meets the famous Copenhagen Criteria, and thus cannot be regarded as eligible for accession negotiations with the EU.

One could expect Spanó to openly call on Erdoğan to return to democracy and restore the rule of law in the country, as not doing so – ignoring the establishment of a totalitarian regime in Turkey – would discredit the ECHR’s position with respect to the authoritarian tendencies of Poland’s Andrzej Duda and Hungary’s Viktor Orbán.

It would be underestimating Spanó to think that he is unaware of the decision to remove from the Turkish Council of Judges and Prosecutors (CJP) their observer status in the European Network of Councils for the Judiciary (ENCJ), when 4,500 judges and prosecutors were purged and jailed in the aftermath of July 15, 2016 coup attempt in Turkey.  I am sure that during his lecture to the candidate judges at the TJA, Spanó intends to tell the truth about why the European Judicial Training Network (EJTN) expelled the TJA from observer membership status in 2016.

Being well aware of the fact that remaining judges (as well as 10,000 new judges appointed after the coup attempt) are often politically biased in applying the law, Spanó will likely call on them to ignore political pressure from the Palace, Constitutional Court (AYM) and other high courts. Since he was the presiding judge of the ECHR when it declared that Turkish courts’ rulings on the cases of Kurdish politician Selahattin Demirtaş and philanthropist Osman Kavala were based on political motives, he can tell them to be proud of being judges in a country which was for the first time in history found in breach of Article 18 of the European Convention on Human Rights. One would think that he would also tell them that they can never be considered independent judges as they were appointed purely based on political affiliations.

When meeting with the members of the AYM, I am sure Spanó will ask about their recent farcical decision in the Yıldırım Turan case, which effectively turns the role of the ECHR upside-down by ignoring Article 90 of the Turkish Constitution itself.

Spanó will probably tell them that it is not for the AYM to oversee ECHR’s compatibility with Turkish laws enacted during the two-year post-coup State of Emergency; but for the ECHR to review the compatibility of Turkish courts with the ECHR system. Taking this opportunity, he may also remind the AYM members of ECHR judgements on Alparslan Altan and Hakan Baş, in which Turkey was found in violation of the ECHR for the unlawful arrests of at least 2,500 judges and prosecutors.

Being very well aware of the Statement by the Platform for Independent Judiciary in Turkey, he might tell them that they should immediately release the hundreds of judges still in solitary confinement, and reinstate all 4,000 of their purged colleagues.

He would of course, one would believe, remind them of the recently published findings of the CPT which reveal torture in Turkish prisons after 2016. Having mentioned that, Spanó can also discuss the closure of the investigation into the documented torture of 106 diplomats in 2018 despite reports by the Ankara Bar Association.

During his conversation with the Justice Ministry, he will surely discuss the manipulations made by the justice minister himself and the interior minister about the recently deceased lawyer Ebru Timtik, who did nothing more than demand a fair trial until her last breath. I am sure that Spanó will ask why ministers are slandering her for being involved in the assassination of prosecutor Selim Kiraz when no judicial authority in the country has posed such an accusation against her.

Finally, there is the matter of the ceremony for a controversial honorary doctorate from Istanbul University. Being an exemplary jurist with brilliant advisors around him, Spanó knows that Istanbul University purged around 200 of its academics. As declared in an open letter by prominent academic Mehmet Altan, who served two years in prison on terror charges before he was acquitted, these academics will eventually bring their cases before the ECHR, and Istanbul University will be the defendant as a party in a dispute.

There is one option left, I believe, that would suit the stance of an honourable judge: To decline this award even before stepping onto Turkish soil, and conveying a very strong message to all parties before meeting with them in person.

Otherwise, the good will exerted through Spanó’s visit would not only be wasted, but serve as a trump card for the government and Erdoğan, who will use the gesture as a sign of appraisal and legitimisation of the illegalities taking place in the country under his rule.