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Rulings of the Supreme Courts inappropriate

 A few days ago, the European Court of Human Rights (ECHR) declared the appeal of Selahattin Encu & others’ (Appeal No: 49976/16, dated 17/05/2018) for Roboski Massacre, which had paramount implications both politically and socially, inadmissible suggesting that domestic remedies had not been exhausted. The appeal was ruled to be inadmissible on procedural grounds, without even being reviewed.

Turkish Constitutional Court had found the case inadmissible on initial assessment, meaning that the case had been rejected on procedural grounds (Appeal No:2014/11864, dated 24/02/2016). Turkish Constitutional court had granted an extension of 15 days citing that 1) there is missing information regarding the identifications of some of the applicants 2) power of attorneys have not been provided for some of the applicants 3) a number of decisions appealed against has not been attached.

The requested information and documents had been provided on the seventeenth day along with the reason for not submitting the documents on the fifteenth day and a medical report proving the medical condition that caused the delay. The Constitutional Court rejects the case suggesting that even if the applicant has been diagnosed with nasopharyngitis and myalgia and a five days of sick leave has been recommended by the medical report, the health condition mentioned in the report is not severe enough to cause a delay.

First of all, it is the doctor’s duty to decide whether the health condition is severe enough to prevent the applicant from submitting the required documents. Moreover, Constitutional Court has not requested professional advice on this matter. Therefore, the Court’s decision beyond its expertise is inappropriate.

On the other hand, in my opinion, even if it was stated by health professionals that the health condition is not severe enough to prevent the applicant from submitting the documents, the Constitutional Court should have reviewed the case by virtue of the principle of “respect to human rights”. I am going to touch upon this point below.

The additional information requested by the Court is not fundamental in nature. Missing ID details could have been acquired from power of attorneys attached to the application as national ID numbers are provided therein. The Court could have found all the required information using those numbers through their internal databases. Missing power of attorneys also could have been completed until the decision stage. This is the modus operandi of Turkish courts including the high courts. The pretext of the Court that some of the decisions appealed against has not been provided is not realistic either since these decisions could have been acquired easily through National Judiciary Information System (UYAP). Those which are not available on UYAP could also be found easily by the Court. Due to the facts outlined above rejection of the case on procedural grounds is disappointing.

ECHR has also declared the case inadmissible since domestic remedies had not been exhausted. With this decision, ECHR suggests that the applicants could have won the case, had they provided the required documents to the Constitutional Court on time.

The reasoning of both the ECHR and the Turkish Constitutional Court violates the principle of “respect to human rights”. Elaborations on both decisions sound like excuses rather than genuine reasons.

Roboski incidents and judicial process

Turkish Air Forces jets bombarded the border region near Ortasu Village of Uludere District of Sirnak Province on 28/12/2011 at around 11.00 PM in an anti-terror operation and killed 34 people 28 of whom belonged to the same family. The next day, it was revealed that those who were killed were smugglers, not terrorists.

Naturally the incident caused outrage in the region. Many people from all over Turkey attended the funerals of the victims. Although an investigation was swiftly launched, Uludere Criminal Court of Peace gave a confidentiality order regarding the case and the public was not sufficiently informed.

Diyarbakir Public Prosecutor’s Office, which was running the investigation, gave a decision of lack of jurisdiction and referred the case to the Chief of General Staff Military Prosecutor’s Office.

Then Head of Diyarbakir Bar Lawyer Tahir Elci, who was representing the victims and later on killed in a terrorist attack, appealed against the decision but could achieve no positive outcome.

Chief of General Staff Military Prosecutor’s Office has decided that a criminal case is unnecessary since “Turkish Armed Forces personnel had committed an unavoidable wrongdoing while enforcing the law”.

Lawyer Tahir Elci rightfully stated that they had expressed their concerns that Military Prosecutor’s Office, which is attached to the Chief of General Staff that is responsible for this act, would not be able to carry out an impartial and fair investigation. His remarks, of course, did not change the outcome.

Later on, a number of lawyers lodged individual applications to the Constitutional Court on 18/07/2014 which were declared inadmissible by the Constitutional Court on 26/02/2016 due to the excuses explained above.

Naturally these lawyers who were struggling for human rights and the rule of law would not anticipate that their action would have negative implications and would be used against themselves.

At this point, victims applied to the ECHR as a last resort. However, despite high expectations ECHR did not take any action and disappointed the applicants.

What are procedural provisions for?

 During judicial processes, which aim at resolving conflicts, all actions are taken in line with the rules. Procedural provisions are those which are utilized to resolve conflicts in a fair and realistic manner.

Procedure serves the merits. Namely, it has been developed to support the merits. Therefore, merits are essential and they cannot be substituted by the procedure.

Methods, tools, their functions and qualifications are naturally essential. If appropriate tools are duly utilized, an outcome is reached pretty fast. You can open a door by the right key in a matter of seconds. But you may not get the same result by a hammer, sledgehammer or a pickaxe for hours. Therefore, jurists widely believe that procedures come before merits.

On the other hand, jurists also believe that merits should not be overshadowed by procedures. This means that merits are essential and procedures are valuable as long as they serve the merits. Procedures are therefore secondary.

Procedures which advise applicants or their representatives to submit documents within a specified timeframe are based on the understanding that cases may pend indefinitely unless a timeframe is defined. Of course all of these rules are appropriate and necessary when assessed individually. Nonetheless; in order to find a balance, these rules should be assessed on their merits taking into consideration the other factors related to the nature of the conflict.

In our case, if we implement theoretical knowledge to the particular case, one could imagine that a due and realistic balance is not reached.

 Approaching human rights with respect

It is a fact that human rights law has developed recently. Its basic presumption is that human beings are dignified and honourable. Everything else is all about defending and upholding people’s dignity and honour.

Due to this understanding, it is commonly believed that everyone has basic human rights which even themselves cannot deny, protection of these rights is not solely the duty of the holder of these rights and that even sovereign rights and jurisdictions are secondary in comparison.

This universal thought is defined as “respectful approach to human rights”. According to this principle, human rights is central and all other factors rotate around them. To put it more solidly, rules to be implemented in resolution of conflicts are assessed for the benefit of human rights whereas restrictive rules are implemented narrowly.

Turkish Constitutional Court and ECHR already knew these matters. Moreover, many jurists including myself learned these rules, principles and perspective from the practices of these courts.

As discussed, the decisions of high courts are inappropriate. Neither Turkish Constitutional Court, nor ECHR has approached human rights respectfully. We hope that high courts, which have been set up to defend human rights and therefore human dignity, change their perspective and make decisions which uphold human dignity.

*Turkish original text has been translated into English by a couple of human rights volunteers.

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