In an opinion piece for the European Implementation Network, Ayşe Bingöl Demir shares her analysis about the futher human rights, rule of law and democratic backsliding which took place in 2021 in Turkey, and how the Osman Kavala case will be a test case for the Council of Europe and Turkey relations in 2022:

“The human rights community of Turkey was happy to leave behind the difficult year of 2021, but it also welcomed 2022 reluctantly. Because it is not possible to foresee how far -and where else- the non-stop back peddling of the AKP government in human rights, rule of law and democratic standards will go. Led by President Recep Tayyip Erdogan, the government’s adherence to an authoritarian regime, especially since the July 2016 coup attempt, has indeed become more fearless and aggressive over the last couple of years. The extent of the damage of this period to the country’s founding pillars -which already had had serious existential issues before- has caused is yet to be seen. The recent Human Rights Watch report, however, gives us a hint of what it looks like: Turkey’s human rights record has been set back by decades.

Not surprisingly, despite this extremely serious human rights, rule of law and democratic backsliding in the country, the reaction of the international community has been considerably limited. Turkey has a long-standing relationship with the EU, it is a NATO member and part of many UN monitoring mechanisms. Thus, the country has been one of the earliest members of the Council of Europe. The European Court of Human Rights, the most important guardian of the Council of Europe’s founding principles, has been determining individual applications from Turkey for over three decades. Moreover, the country has been an ally and trade partner of a number of western democracies, including the United Kingdom, Germany and the USA despite some setbacks in relations here and there.

In an ideal world, it would not be unreasonable to expect that a country that is part of a vibrant international relations circle would face consequences for its systemic failure to meet its international human rights obligations. But the case of Turkey is a clear illustration that we are far from experiencing the ‘ideal’ as none of these institutions or countries has so far taken an effective and meaningful stand to address the human rights situation in the country. This lack of proper response to the government stifling a whole population with its authoritarian practices has been seen as a contributing factor to the deteriorating situation.”

The Parliamentary Assembly of the Council of Europe has limited tools of sanction and scrutiny at its disposal to respond to serious transgressions of member states. Since the failed coup attempt in Turkey and the government’s subsequent crackdown, sanctions have barely been discussed, let alone used, in the Assembly. However, the monitoring procedure, the most significant tool of scrutiny, has been reopened in respect of Turkey—a step without precedent in the 70 years of the Assembly’s existence. Drawing on documentary sources and interviews, this paper analyses the three key debates about Turkey in the Assembly since the failed coup d’état. The paper documents how Turkey has disputed any criticism of its actions and pushed back against all exceptional treatment as punitive and damaging to long-standing relations. It finds that political support for the Erdoğan regime has been unstable and, if anything, diminishing. The Assembly, like other Council of Europe bodies, has declined to endorse the Turkish authorities' version of the events of 15 July 2016 and their aftermath. Considering its limited powers and scandal-ridden recent history, we conclude that the Assembly’s response to the decay of the rule of law in Turkey has been stronger than one might have expected.

Spencer reviews the viability of Turkey’s Criminal Peace Judgeships against the standards set by the European Court of Human Rights in relation to Article 6 the right to a fair trial and Article 5, the right to liberty and security. Evaluating the establishment of the Criminal Peace Judgeships and factors influencing their independence, Spencer concludes that they do not meet the requirements of independence and should not be considered viable avenues for domestic redress.

Spencer reviews the statements of the Council of Europe and the Turkish Media Law Studies Association (MLSA) released after a meeting in May 2015 convened to discuss criticisms of the European Court of Human Rights in relation to the high number of rejected applications and controversial decisions such as Köksal and Bora. The Council of Europe stated it is “aware of a common perception among NGOs that the ECtHR is not giving adequate attention to human rights issues in Turkey, but believes this is based on a lack of information and misconceptions” and reiterates that they have the right to reject applications. Referencing the Sahin Alpay case, it is stated that the court is not barred from reviewing the domestic avenue in the future. The MLSA response comments on the length of pre-trial detention and the practical viability of domestic avenues. Taking these statements together, Spencer argues “in moving forward, the CoE must reconsider the criteria of a viable domestic avenue; at the very least, explain the circumstances in which the State of Emergency Commission and Constitutional Court could be re-evaluated.”

This article critically assesses the dismissal of numerous civil servants under state of emergency measures from the perspective of ECtHR law. Focusing on the application of Article 8 and Article 6 (in conjunction with Article 13), the article uses the Court’s caselaw on lustration proceedings as an analogy to conclude that the “purge” of public servants is incompatible with Turkey’s international law obligations.

Tolga assesses the decisions of the Turkish Constitutional Court in the cases of Mehmet Altan and Sahin Alpay. Specific focus is paid to the way in which the decisions diverge from judgements of a similar nature of the ECtHR. Specifically, the violations of freedom and security did not concern the long duration of pre-trial detention but rather a “strong suspicion” determination concerning the first decision ordering detention (i.e. an Article 5(1) violation rather than Article 5(3)). Additionally, the decision was made on an on-going case. The author argues this focus explains the first instance courts reaction and other criticisms that found the court to be acting as a “super-appeal court.”