HomeTop Stories On TurkeyHow European Court of Human Rights commits a crime against Humanity

How European Court of Human Rights commits a crime against Humanity

The European Court of Human Rights (ECtHR) and the Council of Europe are accomplices of Erdogan regime. These institutions are acting with the mission of justifying the crime of genocide perpetrated against the Gülen movement in Turkey in the 21st century. Below you can find concrete evidences of this serious accusation.

We see that the stance of the ECtHR against the systematic and intensive violations of human rights carried out by the Turkish Government after July 15 is parallel with the stance of the Council of Europe to which it is bound. In the bigger picture, the Council of Europe is pursuing a collaborative policy in its relation with Erdogan regime. The approach of the institutions within the Council such as the Commissioner for Human Rights, the Venice Commission, the Parliamentary Assembly of the Council of Europe (PACE) and the European Committee for the Prevention of Torture confirms this reality. In order to see this collaborative attitude, it is necessary to compare the general stance of the Councils and Institutions, the attitudes of the UN Human Rights Mechanisms, especially with the statements, reports and resolutions of the UN Human Rights Commissioner, UN Rapporteurs, UN Human Rights Committee and UN Working Groups. While the Council pays attention to human rights violations in some other countries, it ignores the violations in Turkey due to its cooperation with Erdogan regime.  Finally, the different approach of the mechanisms of the Council towards general human rights violations and the violations towards Gulen Movement in Turkey makes these discriminatory practices more apparent and evident.

The possible reasons for the rapprochement between the Council of Europe/ECtHR and the Erdogan Regime are broad and worth enough to be the subject of another article.  The monetary aids that the Erdogan regime has committed to the Council which is in financial crisis can be considered an important reason. Considering Syrian refugee card Erdogan is playing against EU and the impact of the European Union and European countries on the Council, the lobbying activities of the Erdogan regime with its visible and invisible partners in the globe and interest based relations of some high-level officials, especially the Former Secretary General of the Council of Europe, with the Erdogan Regime can be summarized as the leading reasons of this corrupt attitude.

Before demonstrating the biased stance of the ECtHR regarding genocidal policies of Erdogan regime after July 15 coup attempt, it should be noted that the European Convention on Human Rights is a text that protects the fundamental rights of the individuals against the state. For this reason, the ECtHR Decisions in general prioritize the individuals and defendant perspectives. The ECtHR protects the fundamental rights of the individuals against the state in accordance with the spirit of the contract it is obliged to protect. We see that the ECtHR has reversed this perspective, which has been consistently applied for years, for the applications related to Gulen Movement, and deals with the ‘Contract’ from the perspective of the respondent state, not the individual claimant.

The ECtHR is an authority that has to intervene in any intensive and systematic human rights violations which took place in any member state of the convention.

It is not a matter of discretion whether it should intervene or not. Especially if it distorts the facts in order to avoid this duty and acts in collusion with the respondent state, it increases the level of active participation in crime from condoning to crime. In other words, it is a crime for ECtHR to give legitimacy to Turkish  courts, which are tools of genocide, and to reverse the concrete evidences because the new cases will be new burden of works for the ECtHR. The statement ‘The Court still considers Turkish national law effective in order not to fall under the intense applications from Turkey’ is the confession of the fact that the Court ignores the commitment of Genocide and Crimes Against Humanity in a member state of the Convention.

As required by its regular practice in the past, the ECtHR prevents intensive and systematic violations in a member state with a “Pilot Decision Application”. With the Pilot Decision Application, an exemplary decision which reflects the essence of the structural problem is made and a case law is created; Thus, the Member State and its Courts are given the message, based on this decision, to change the legislation, practice the case law on the subject that causes the violation. After that, the member state should establish a Commission for similar cases in domestic law  and pay the compensation accordingly.

While thousands of sample applications that can reveal the structural reasons of fundamental human rights violations in Turkey are supposed to be examined that can help to constitute jurisprudence , the ECtHR decides the most appropriate cases in favor of the Erdogan Regime.

 On the one hand, while the ECtHR considers the domestic law effective and prolongs the process against the law and concrete reality in order not to detect intense and systematic violations in Turkey, on the other hand, makes leading decisions in order to provide the most appropriate results in favor of the regime in the future. By creating bridges with these contents for future decisions, it completes the puzzle for Erdogan regime. In other words, ECtHR has entered a new phase by the process of making a decision to exonerate the genocide committed in cooperation with Erdogan regime, especially to reflect the main theses of the regime, including the declaration of the Gülen Movement as a terrorist organization.

In such a situation, every application made to the ECtHR turns into an opportunity for the Erdogan Regime to have the general theses of the regime accepted by the world through an international court. While the ECtHR determines some violations of the procedure and makes positive decisions to show, it places the regime’s dominance in critical matters; sacrificing a pawn and taking the vizier. This simply means that the victims win while actually losing, Erdogan Regime loses while actually winning. In order to establish this perception, the ECtHR uses every opportunity it can find with all potential decisions and constantly repeats the same rhetoric.

injustice 1

An important tactic used to reinforce the fact that the Erdogan regime is fundamentally justified was to pass the decision on files of arrested applicants ruling that there is sufficient evidence for detention and conviction, although there was not enough reason to detain the applicants at the beginning. While the main issue to be examined in both Hakan Bas and Alpaslan Altan verdicts was to determine whether there was a reasonable suspicion requiring the applicants to be detained at the time of their arrest, the decision of the ECtHR on Alpaslan Altan case gave a lengthy detailed coverage of the evidence against the applicant in the indictment and the state defense, although there was not enough evidence to require his arrest at the beginning. ECtHR then established the perception that there was sufficient evidence for the detention and conviction.

While the Court pays attention to withness, confessors and contents of Bylock application, it does not question whether the evidence provided by the withness and confessors statements against the applicant was obtained through intensive torture and prohibited interrogation methods detected by the reports of the UN Special Rapporteur for the Prevention of Torture. In the Alpaslan Altan verdict, the two separate anonymous witness statements obtained after the arrest are quoted verbatim for approximately two pages, and in the same way, the Bas verdict gives detailed information about all the adverse evidence entered in the file and the conviction of the applicant.

As a matter of tactics carried out cases against Gulen Movement, activities protected by international law within the scope of fundamental rights and freedoms are tried to be portrayed as a crime by referring to reports, decisions and determinations of multiple institutions with long mysterious statements. This tactic is also used by the Court in a similar way. Aiming its arguments look strong and providing some quotes, the Court pretends that it is acting independently from the criminal apparatus of the regime.  

The Court uses statements contrary to the concrete reality and makes distortions in its decisions on acceptance and rejection. In particular, without looking at the plaintiff’s arguments and evidences  supporting these arguments, the Court constitute a justification by repeating the evidences that it tried to collect only from the point of view of the defendant state without discussing it.

Although it is known that there is no legal remedy against dismissals with the Decree Laws, that the regime has declared this fact to the Venice Commission, and that individual applications cannot be made to the Constitutional Court against regulatory proceedings, in the Akif Zihni Decision, which is a pilot decision for tens of thousands of Decree Laws, the Court, contrary to the concrete reality, decided that applicant  could appeal to Administrative or  Constitutional Court.

The Court acted the same in Koksal’s Decision, too, as it acted in the previous (Dogan and Others v. Turkey Ummuhan Kaplan v. Turkey) rejecting approximately 20,000 applications to apply to the Turkish Commission, which has yet to be established, and whose effectiveness is not known.

Zeynep Mercan Verdict is full of statements and observations that will go down in history as an embarrassment for ECtHR. Zeynep Mercan is a judge who was dismissed and arrested after July 15 applied to the ECtHR without appealing to the Turkish Supreme Court stating, “There is no judicial independence in a country where 1/3 of the judiciary is dismissed against the judge’s guarantee. Supreme Court is not independent and can’t give independent decisions since its two members were already dismissed and arrested without any evidence. The ECtHR dismissed the applicant’s allegations that the Constitutional Court was not independent and impartial, as a “Simple Concern”.

In its decision of Hakan Bas, the Court also ruled that the courts are independent and impartial, ignoring thousands of concrete evidences and the findings of the Venice Commission.  

As seen in the case of Altan, keeping applications for unjust detention on hold and when the applicants are convicted, the Court actually ensures that the violation decisions have practically no scope of practice.

In all of the decisions taken by the ECtHR on July 15 (Hakan Bas, Alpaslan Altan, Sahin Alpay, Mehmet Altan, Ahmet Altan, Osman Kavala, Halime Kaman), we see that the narrative that it repeated under the name of concrete reality (FACTS) was copied from the 15 July indictments prepared by Erdogan regime. Everything that the Court tries to tell us under the name of FACTS consists of the narrative and a theory used by the Erdogan Regime to convince the International Public opinion and  he wants us to believe.

The statements that the ECtHR has placed in all decisions under the name of FACTS are as follows. A group of members of the Turkish Armed Forces, calling themselves the “Council of Peace at Home”, attempted a coup attempt on the night of 15 July 2016 to overthrow the democratically appointed parliament, the government and the President.

9. During the coup attempt, the soldiers under the control of the putschists bombed many critical buildings of the state, including the Parliament and the Presidency campus, attacked the hotel where the President was staying, took the Chief of General Staff hostage, attacked the television stations and opened fire on the demonstrators. During this night of violence, more than 200 people were killed and more than 2,500 were injured.

10. The day after the military coup attempt, the national authorities accused the network linked to Fetullah Gülen, a Turkish citizen residing in Pennsylvania and considered the leader of the terrorist organization called FETÖ / PDY (Fetullahist Terrorist Organization / Parallel State Organization). Later, many criminal investigations were initiated by the competent prosecutor’s offices against those suspected of being members of this organization.

As seen in the article number 10, these are the accusations of Turkish national authorities, not facts based on evidences.

However, there is another fundamental theory opposite to that one that the Erdogan Regime tries to hide. According to this theory (narrative), the coup attempt was a scenario designed to be unsuccessful by the Erdogan Regime itself, within this fiction is the Chief of General Staff, the MIT, Turkish Intelligence Directorate. The coup attempt was planned to criminalize the Gulen Movement as a terrorist organization. After the staged coup, a state of emergency was declared and it is claimed that the opportunity to commit crimes against a certain group, such as intense arrests, torture, kidnapping, extrajudicial executions, and crimes that reached the level of crimes against humanity, were achieved through the abuse of the judicial system. Since the Gulen Movement was planned to be declared a terrorist organization with the coup attempt, elements such as the bombing of the parliament and the opening of fire on civilians, which are against the classical coups but which are indispensable elements of the terrorist crime, will create fear and horror in the public. According to this narrative, soldiers are withdrawn to bridges and similar places under the name of military exercises, people are tried to be brought against soldiers and civilians are shot. Most of the deceased civilians are killed by pre-arranged snipers. There is no autopsy of civilians who passed away etc.

In this narrative, there are 160,000 arrests, 130,000  lost jobs which caused 1 million 500 people affected by these firings, 250 cases recorded as suspicious deaths, 150 abductions, 934 private schools closed by decree laws, 15 seized Universities, 49 seized health institutions, 1.767 sezed associations, foundations, unions and federations and 234 thousand canceled passports. 

The ECtHR consciously interprets all events from the perspective of the Erdogan Regime, focusing on the regime’s theses without the need for any evidence from the beginning. The purges carried out within the framework of this theory underscore the extent of the danger faced, not the arrests, intensive and systematic human rights violations. The Court wants us to accept the magnitude of the liquidation as an excuse for the declaration and continuation of the state of emergency. For example, it considers the liquidation of 1/3 of the judiciary against procedural guarantees and the arrests of Judges and Prosecutors not from the perspective of judicial independence, but from the perspective of how the so-called terrorist organization is structured in the judiciary. (See Hakan Bas Decision)

The Court reads all events through the theories of the respondent state and gives this under the name “FACTS / Facts”. For this reason, without even giving place to the counter-theory, it violates the principles such as the right of fair prosecution, the right to be tried before an independent and impartial court, and the principles of equality of arms, which are guaranteed within the framework of the fair trial title of the Contract it is obliged to protect.

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TALIP AYDIN
TALIP AYDIN
Dr. Talip Aydin holds a doctoral degree on Law from Penn State University. He is a former Judge and Head of Human Rights Department of Turkish Department of Justice. He is an academic, activist.
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