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Turkey: How the Kurdish Struggle is playing out at the European Court of Human Rights

 

Kurdish Herald Vol. 1 Issue 4, August 2009 - by Sayran Sulevani

 

The Turkish government’s latest push for EU membership has been accompanied by renewed interest in the Kurds. Prime Minister Recep Tayyip Erdogan recently announced his government`s work on a ‘Kurdish initiative’ expected to be released later this month. In a public statement, he urged opposition parties, NGOs, academics and the media to take part in the process of national reconciliation. However, the apparent correlation between reform efforts and accession ambitions has left many human rights advocates skeptical of the sincerity of these acts. The reform movement, spurred most recently by the EU accession process, has collided head-on with the nationalist political establishment and a deeply entrenched status quo. The result is a contradictory space within which Kurdish human rights activities have both flourished and floundered. One arena where this clash has played out is at the European Court of Human Rights (ECtHR).

 

Kurdish rights activists from the Kurdish Human Rights Project on a fact-finding mission near the village of Kirkpinar in Dicle, Diyarbakir. Residents were forcibly displaced in 1993. - Photo Courtesy Kurdish Human Rights Project

 

In 1987, the Turkish government made a formal application for EU membership and recognized the right of individual petitions to the ECtHR. Within six months, government officials declared a state of emergency in the predominantly Kurdish southeast of the country. During the region’s fifteen-year period of emergency rule, hundreds of thousands of people were driven from their homes, thousands of villages were razed and reports of extrajudicial killings, deaths in custody, disappearances and torture skyrocketed. Under the Emergency Law, all government action in the region took place outside the reach of the national constitution.

 

When EU membership became a tangible goal in the late 1990s, the judgements of the ECtHR gained significant political weight in the reform process. Turkey passed a 2002 EU harmonization law, which amended the Penal Code to allow for retrial in light of ECtHR decisions. Similarly, Article 90 of the Turkish constitution was amended in 2004 to give the ECHR and the case law of the ECtHR direct effect and supremacy over Turkish national law. Although Turkey has improved its execution of ECtHR judgements in recent years, the European Commission’s 2008 report on Turkey’s progress towards accession noted with disapproval that further legislative reforms to bring Turkey into line with the ECHR have slowed almost to a standstill.

 

The European Commission looks to ECtHR decisions and their enforcement in Turkey as a measure of Turkey’s progress toward its accession goals. As such, ECtHR decisions have gained considerable persuasive power in Turkey since the accession process began and the ECtHR’s jurisprudence has informed many of Turkey’s legislative reforms. However, the Turkish government’s poor record of implementing reforms has left many human rights advocates wondering about the ECtHR’s true impact.

 

Reforms Spurred by ECtHR Rulings

 

The ECtHR held Turkey to be in violation of the ECHR in a series of internally displaced persons (IDP) cases in the 1990s. In Akdivar and Others v. Turkey (1996), local security forces were held responsible for burning down the houses of the applicants. In another case, Dogan and Others v. Turkey (2004), the ECtHR held that no effective remedies existed for Turkey’s displaced persons and introduced the idea of a governmental compensation scheme. As a result of the Dogan and Akdivar line of cases and increasing pressure from the EU to compensate and secure the return of IDPs, the Turkish government enacted compensation legislation in 2004.

 

Kurds protest for their rights; some holding signs that write, "Allow Kurdish to become an official language" - Photo Courtesy Gundem-Online

 

The importance of freedom of expression in a democratic society was emphasized by the ECtHR in Incal v. Turkey (1998). The court stressed that the right of expression is especially important to political parties and that any action to restrict their speech should be closely scrutinized by courts. The Turkish government liberalized its laws on freedom of expression through a series of EU harmonization packages in 2002 and 2003. The Constitution was amended in 2001 to remove the prohibition against using a language prohibited by law and the Law on Political parties was amended in 2003 to make it more difficult to dissolve political parties.

 

Increased awareness of rights

 

The accession process has seen an increase in the number of minorities in Turkey seeking to enforce their rights, both before national courts and the ECtHR. In 1999, when Turkey became an official candidate for EU accession, 653 petitions were submitted to the ECtHR. In 2008, the number swelled to 3,706. Between 1999 and 2008, Turkey had the most decisions delivered against it of all 47 member states, with 1,652 decisions in which at least one violation was found.

 

The success of the applications has been quite high. Of the 264 judgements delivered regarding Turkey in 2008, only one resulted in a finding that no violations had occurred.

 

The availability of ECtHR decisions in Turkish, improvements in enforcement and decreased fear of repercussions for approaching the ECtHR have all contributed to the increased volume of applications. In particular, applicants outside urban centers, often assisted by individual lawyers rather than human rights organizations, have been increasingly petitioning the ECtHR.

 

Early ECtHR litigation in Turkey provided a method of officially documenting the sheer volume of abuses occurring in the country’s south-east. More recently, organizations such as the Istanbul-based Foundation on Social and Legal Studies (Toplumsal ve Hukuk Arastirmalari Vakfi-TOHAV) have begun to engage in strategic test case litigation both at the national and international levels, focusing on issues including restrictions on the Kurdish letters q, w and x.

 

Implementation issues and limits of the court

 

Clearly, progress has been made in Turkey in the form of wide ranging reforms and growing public rights awareness. However, the government`s dismal record of implementation has left the impression that much of the reforms are in name only.

 

As a result of the legislation ostensibly enacted to compensate IDPs, some 1,500 home destruction cases pending before the ECtHR were rendered inadmissible. In the 2006 decision Içyer v. Turkey, the ECtHR held that the new compensation scheme was an effective domestic remedy that had to be attempted before applications could petition the ECtHR. However, the work of the commissions quickly deteriorated after the Içyer decision, with reports of drastically reduced settlement offers, inconsistent damage assessments and exclusion of applicants from the scheme.

 

Despite liberalizing reforms, free speech continues to be limited in Turkey. The new penal code, which entered into force in 2005, contains further provisions limiting non-violent expression. Several high profile closure cases against political parties led the European Commission to observe in its 2008 Progress Report, “The current legal provisions applicable to political parties do not provide political actors with an adequate level of protection from the state's interference in their freedom of association and freedom of expression.” As a result of the prohibitions in the new penal code and provisions introduced under Anti-Terror legislation in 2006, prosecutions of non-violent opinions increased between 2005 and 2008.

 

In July, noted human rights activist Leyla Zana was convicted of disseminating propaganda for a terrorist organization for a speech made abroad and sentenced to 15 months in prison. She had already been sentenced to 10 years following a similar conviction in 2008. Similarly, local politician Orhan Miroglu was convicted for speaking Kurdish during the 2007 election speeches, a decision that he has taken to the ECtHR. Unfortunately, the constitutional amendments on language prohibition did not extend to political parties.

 

 

Fragments of human skull and bones found during excavation in Kurdish cities of Silopi and Cizre. Crimes likely perpetrated by JITEM, an illegal unit formed within the Turkish gendarmerie - Photo Courtesy Today's Zaman

In theory, these cases can be appealed to the ECtHR; however, the court’s large backlog and limited resources means that petitions will likely not be heard for an additional five to ten years. Further, recent reforms designed to address the backlog have imposed strict admissibility rules which will deprive many petitioners of a decision based on the merits of their individual cases.

 

Despite concerns, accession is a driving force for change

 

The EU remains deeply divided about Turkey’s accession bid. According to recent opinion polls, the Turkish public is increasingly skeptical as well. Turkey’s Justice and Development Party (AKP), however, has renewed its commitment to accession in a series of strong public statements. Indeed, the government has roundly rejected proposals tabled by Germany and France for a limited partnership with the EU.

 

The AKP maintains that reforms will continue with or without the accession process. Clearly, the government’s recent behavior suggests that it has an interest in addressing the Kurdish question. In addition to recent public announcements regarding a 'Kurdish initiative', the government has expressed an interest in consulting with academia, civil society and politicians.


Turkish Prime Minister Recep Erdogan (left) meets with pro-Kurdish Democratic Society Party leader, Mr. Ahmet Turk (right) Photo Courtesy Hurriyet Daily News - 2009

 

On August 5th, Prime Minister Erdogan met with Ahmet Turk, leader of the pro-Kurdish Democratic Society Party for the first time – albeit as an AKP member and not as prime minister – reportedly in an effort to bolster unity. However, the direct correlation between the pace of reforms and the government’s accession zeal have advocates concerned about what a breakdown in Turkey-EU relations could mean for the Kurds.

 

The rapid changes that have taken place in Turkey have been driven largely by the EU accession process. However, the reform process has been resisted by the political establishment and implementation has been slow and uneven. Given that opposing poles of reform and resistance are still strong in Turkey, actual change will, in all likelihood, continue to be slow and uneven.

 

Despite these difficulties, the process has introduced immense incentives for solving a human rights problem previously rendered invisible by longstanding government policies. Ultimately, a space has been created for people to engage in a sort of rights discourse with the state. Approaching the ECtHR has proved to be one method of entering the discussion.

 

 

 

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