13 January 2022
During Gezi, freedom of expression in a collective form was directed against the government. Although it was the same government behind the enlargement of the scope of fundamental rights and freedoms in the early 2000s, after Gezi, step by step, Turkey has lost its enthusiasm vis-à-vis any norms and principles of international human rights.
Turkey is a party to almost all human rights instruments adopted under the United Nations and the Council of Europe (CoE) framework. Until recently, Turkey’s attitude towards international human rights law has been relatively respectful. Since the country was established in 1920s on the basis of western concepts of secularism, democracy, the rule of law, and freedom, positioning itself with the post-Second World War international human rights regime were thought as further strengthening the founding principles of the Republic.
Things started to change suddenly since 2013, when the government faced nationwide protests began at the Gezi Park in Istanbul/Turkey. During Gezi, freedom of expression in a collective form was directed against the government. Although it was the same government behind the enlargement of the scope of fundamental rights and freedoms in the early 2000s, after Gezi, step by step, Turkey has lost its enthusiasm vis-à-vis any norms and principles of international human rights.
Today, situation reached a point where individuals in opposition can enjoy no human rights within the country. The proof came from the European Court of Human Rights (ECtHR) in two judgements delivered in 2018 and 2019. In the Case of Demirtaş v. Turkey, and Kavala v. Turkey, the Strasbourg Court declared that Turkey violated Article 18 of the European Convention on Human Rights (ECHR).
Article 18 of the ECHR prohibits the States parties from applying the restrictions permitted for the Convention rights for any other purpose other than those they have been prescribed. Some governments often use it as a tool for politically motivated prosecutions to exclude their rivals in the political race. One of the founding fathers of the European Convention on Human Rights, ex-French statesman and jurist Henry Teitgen, described the role of Article 18 in the Convention system as follows: “In all the countries of the world the exercise of freedom has to be organized… The limitation imposed will be valid only if it has as its aim the public interest and the common good… In a totalitarian regime… the State arrogates to itself the right to limit individual freedom not in the sole name of a higher freedom, not in order to permit the exercise of the freedom of all, but simply to defend its own dictatorship, its justification for its interference”.
Only five states among the 47 members of the Council of Europe were found to violate Article 18 by the ECtHR. These states (or “Article 18 countries”: Azarbaijan, Georgia, Moldova, Russia, Ukraine) were the member states of the CoE, which were not known with their adherence to democracy. In almost all cases decided by the ECtHR under A. 18, the victims have somehow raised a dissenting voice. Turkey entered the club for Article 18 countries as the sixth member in 2018. In recent years, journalists, academics, human rights defenders, political figures, or anyone who finds a way to express a critical opinion against the government in power are jailed, stripped from fair trial rights and convicted with abstract charges in Turkey.
In the Case of Demirtas (No. 2) v. Turkey, the applicant was a leader of an opposition political party and personally opposed the policies of the existing government. In this case, the ECtHR found that pre-trial and continued detention of the applicant was based on a predominant political purpose. For the Court, an ulterior purpose of that kind would undoubtedly pose a serious problem for democracy.
Also, in 2019, the ECtHR found Turkey violated Article 18 due to detaining a businessman who was financially supporting the human rights NGOs and anti-government movements in the country. According to the Strasbourg Court, there is nothing in the case file to indicate that the prosecuting authorities had objective information in their possession enabling them to suspect, in good faith, the applicant. The Court further underlined that the prosecution’s attitude could be considered such as to confirm the applicant’s assertion that the measures taken against him pursued an ulterior purpose. It was to reduce him to silence as an NGO activist and human rights defender, to dissuade other persons from engaging in such activities, and to paralyse civil society in the country. In conclusion, it was established beyond reasonable doubt that the measures taken against the applicant pursued an ulterior purpose of reducing the opposition figures to silence.
Is it all about violating an article in a human rights convention, which is done by many countries every day? The answer is no. After the European Court of Human Rights’ judgements, the president of Turkey, the Turkish foreign minister, and some other leading government and political figures announced the judgements were not binding and illegal. In other words, the government declared that as long as they favour the human rights of opposing figures, it will not implement the judgements of an international human rights court. And, following these types of statements from the country’s high-ranking officials, the courts in Turkey started defying the rulings of the ECtHR. Considering the above facts, Turkey is in a process that I called in this paper “Farewell to Human Rights”.
 Olgun Akbulut, “Turkey: The European Convention on Human Rights as a Tool for Modernisation” Chapter 16 in Patricia Popelier, Koen Lemmens, Sarah Lambrecht (Eds.), Criticism on the European Court of Human Rights. Shifting the Convention System: Counter- Dynamics at the National and EU-Level (Intersentia 2016) 424.
 Bernard Lewis, The Emergence of Modern Turkey (OUP 1961) 256-281.
Blog Post by: Olgun Akbulut is a human rights and constitutional scholar. His research interests address human rights, minority rights and comparative constitutional law. He was a post-doc visiting scholar at Harvard Law School and a doctoral researcher at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (Lund/Sweden).
Published by the European Liberal Forum. The opinions expressed in this publication are those of the author(s) and do not necessarily represent those of the European Liberal Forum.