The decision of the European Court of Human Rights (ECtHR) regarding Hidayet Karaca, the journalist who has been imprisoned since 2014 and applied to the ECtHR in 2015, was announced yesterday. The court ruled that there was no violation concerning freedom of expression and the lack of reasonable grounds at the time of the initial arrest. However, it found violations regarding the irregularities in the arrest decisions of the peace criminal courts, the lack of sufficient guarantees of independence and impartiality of the courts, and the length of pretrial detention.
Different evaluations have been made by legal experts regarding the decision. Some legal experts argue that the decision is positive because it contributes to the fight for justice and human rights, particularly highlighting the significance of violations in the independence and impartiality of the courts. On the other hand, some other legal experts claim that the decision is a bad one, consisting of a few symbolic violations that do not provide any benefit to the legal struggle, interpreting it as the acceptance of all defense arguments of the government by the ECtHR.
Considering the various evaluations expressed for a long time, I would like to answer the question of how strategic implications should be made regarding the decision on Hidayet Karaca, being one of those who believe that the positive aspects of the decision should be highlighted in the perspective of the ECtHR.
Taking into account the complex and multifaceted nature of the situation and the need for a careful evaluation to determine the most rational approach in the international legal struggle for the termination of grievances, the restoration of rights, and the prevention of anyone from experiencing further grievances, the following points can be considered:
Firstly, within the scope of the legal struggle, despite the current position of the ECtHR, legal processes, including applications to the ECtHR, should continue to be used to address human rights violations and seek justice. This approach demonstrates the victims’ belief in using legal mechanisms to uphold the rule of law and defend their rights. Disregarding the ECtHR would call into question the intention of victims to maintain the struggle in the legal field and would risk transforming the legal struggle arena into a more favorable ground for the claims of the ruling government.
Secondly, critics of the ECtHR’s decisions and implementation argue that those who advocate for making applications are distorting themselves from the real situation by emphasizing political pressures on the ECtHR. In fact, this approach emerges as a reflection of the inability to fully understand the real situation or, in other words, a deviation from reality in the claim of reality. It is necessary to acknowledge that the ECtHR remains one of the few applicable options for those seeking justice. While accepting political limitations, it is crucial to continue benefiting from the ECtHR in order to emphasize human rights violations and seek justice for the victims. Restricting applications will only further limit access to justice and strengthen Turkey’s political influence. The actual approach should not be to reduce applications but to free the ECtHR from political influence. Victims and their lawyers can challenge the influence of politics by increasing the number of applications and developing more effective arguments. Forming a strong group of cases and presenting convincing evidence will help expose the extent of political intervention and advocate for an independent and impartial ECtHR.
Thirdly, it is important to keep in mind that discouraging victims from applying to the ECtHR for various reasons aligns with the strategy of the government. While being aware of the government’s intentions is crucial, avoiding ECtHR applications will only serve to hinder the pursuit of justice. Victims can challenge the government’s strategy by continuing to make applications, raising awareness about political pressures, and exposing attempts to manipulate the legal system. Involvement in the ECtHR process will ensure the recognition of ongoing human rights violations and the need for necessary interventions within the scope of international law.
Fourthly, it is important to recognize that unwanted and unfavorable decisions are part of the realpolitik of legal struggles. It should not be forgotten that it is essential to develop alternative strategies and projects in the face of negative decisions. It is true that legal battles can be complex and time-consuming, and decisions may not always align with expectations. However, accepting this reality should not lead to discouragement or weakening of the struggle. On the contrary, it requires the development of flexible strategies and feasible projects that can adapt to changing conditions. The flexibility of the legal struggle is measured by the ability to develop feasible projects and alternative methods in the face of unwanted decisions resulting from political pressure. Developing discourses that hinder the struggle instead of deepening the strategy will only bring harm, not benefit, to the legal battle.
When looking at the statistical information regarding the decisions made by the ECtHR, it can be said that a gain has been achieved in the legal struggle. A total of 1,303 decisions have been made regarding files related to the Gülen movement. Out of these decisions, 1,017 were found to be violations, 146 were deemed inadmissible, 130 were struck off the list, and 10 were partially inadmissible. There are currently 4,115 files at the decision stage due to detention. Looking at other violation decisions, it can be said that violation decisions will be made regarding the 4,115 applications. A decision is also expected to be made in the Yalçınkaya case regarding applications made after conviction, which will serve as a precedent for other applications. Approximately 20,000 individual applications are pending before the ECtHR. Instead of disregarding these applications, which are made believing in or wanting to believe in the contribution of the ECtHR to human rights, efforts should be made to achieve the best outcome, which will contribute to the struggle.
In conclusion, victims and their advocates should continue to use the ECtHR as a platform in the pursuit of justice, develop effective arguments, expose political interventions, and develop alternative strategies to strengthen their position in the quest for human rights and accountability. Additionally, while acknowledging the complexities and difficulties, we should continue to show our commitment to justice by making every effort that will ensure the ECtHR remains a source of hope for victims of human rights violations.
Our common concern is the end of unlawfulness. The efforts of everyone who strives, guides, provides ideas, supports, criticizes to find the best, raises their voice, and amplifies it are commendable…
Nurullah Albayrak is a lawyer and a columnist at TR724.com