MLSA organized a workshop titled “Significant Points in Procedure of Individual Application to the ECtHR and Contemporary Issues” in partnership with the Diyarbakır Bar Association
Diyarbakır – Media and Law Studies Association (MLSA) held a workshop titled “Significant Points in Procedure of Individual Application to the European Court of Human Rights (ECtHR) and Contemporary Issues” in partnership with the Diyarbakır Bar Association and Friedrich Naumann Foundation (FNST). The workshop was organized as part of a joint project of MLSA and International Press Institute (IPI).
The program started with the welcome speeches of MLSA Co-Director Veysel Ok and Diyarbakır Bar Association President Cihan Aydın. Lawyer Ümit Kılınç and Professor Symeon Karagiannis from University of Strasbourg Faculty of Law, along with Oleksandr Ovchynnykov from the Strasbourg Bar Association trained over 200 Diyarbakır lawyers at the workshop.
“ECtHR’s Demirtaş decision was not powerful enough”
Ümit Kılınç started his session by explaining the structural formation of the Court.
Kılınç encouraged his colleagues to make their applications in Turkish, since translations can sometimes cause problems and that no matter which language the applications are written in, if they are received from Turkey, they are always reviewed by Turkish judges at the ECtHR. He also noted that these national judges operate under the supervision of senior judges.
The participants raised some questions for Kılınç during the discussion part of the first session. He was requested to comment on the Selahattin Demirtaş and Roboski decisions of the ECtHR.
He started out by comparing the Demirtaş decision to the decisions of Şahin Alpay and Mehmet Altan. He noted that the Demirtaş decision was a positive one in the short run, however, was proved to be less stronger than the Alpay and Altan decisions. He said, “ECtHR found a violation of Article 18 of the European Convention on Human Rights, which was a first in Turkey. Although this makes the decision seem very powerful, the fact that the Court found ‘reasonable doubt’ in Demirtaş’s detention (which indicates Article 5.1.c of the Convention was not violated) was the reason that Turkish judicial organs were able to bypass it.”
“ECtHR’s Alpay and Altan decisions proved to be stronger in the long run”
Kılınç noted that the Court had found a violation of Article 5.1.c of the Convention in Alpay’s and Altan’s cases, which makes their imprisonment impossible in the long run. He explained, “Because even if they are convicted, the ECtHR will say there was no reason to detain them in the first place, so there is no reason to convict them.” Kılınç was then asked whether a certain time period must have passed for the execution of the Demirtaş decision, to which he responded by saying, “The decision must have been executed on the day it was made. Demirtaş must have been released on that day. His detention during the period between the decision was made and his conviction was unlawful.”
“The Roboski application carried a historical responsibility”
Afterward, Kılınç spoke of the Roboski (Uludere) decision of the ECtHR and noted that he did not agree with most of his colleagues on the issue. He said, “Due to some missing documents, the Constitutional Court had rejected the Roboski application procedurally. Therefore when brought before the ECtHR, the application could’ve claimed a violation of ‘the right to access a court’, which was not requested. This case had carried with itself a historical responsibility, therefore these risks mustn’t have been taken.” The morning session of the workshop ended with the questions raised by the participants.
Issue of jurisdiction
The second session of the workshop was moderated by MLSA’s Co-Director Lawyer Veysel Ok. Professor Symeon Karagiannis took the floor to discuss the concept of ‘jurisdiction’ as it was used in Article 1 of the Convention. In the light of this conceptual discussion, he noted that the Convention could be implemented upon non-European Council member countries as well. Criticizing the Court’s attitude and decisions, he asked, “I wonder if the Court is aware that in our world, wars are waged with drones and warplanes. We now have what we call ‘targeted killings’. Why aren’t these very dangerous and effective contemporary weapons considered in the eyes of the Court?”
Afterward, Lawyer Oleksandr Ovchynnykov from the Strasbourg Bar Association shared his insights regarding his own special field, execution of ECtHR decisions. He explained the executing organ of the ECtHR, which is the Committee of Ministers that consists of diplomats and not lawyers. Explaining how the decisions of the Court are reviewed, he said “This committee, in fact, is lesser known than any other organ of the Court. If it is not a brand new subject than the decision is first, categorized. Afterward, the committee decides to take a number of measures regarding the decision.” Remarking that the Demirtaş decision is a good example for individual measures, he noted, “The Court ruled for the immediate release of the applicant, and found a violation of Article 18 of the Convention, which is indeed very rarely seen.” He stated that in these cases, the very basis of the country’s democratic system is questioned.
Ovchynnykov presented some examples including the ECtHR’s decision regarding the inmates’ right to vote in the UK, and that countries although seem to cooperate after these decisions are made, most of the time the execution of these decisions are postponed. He remarked that the committe is not a judicial organ, but consists of diplomats and not judges or lawyers. He mentioned that the meetings of this committee are not held in public, and noted, that as someone who has participated in these meetings for years “There is a very complex diplomatic game being played in these meetings. However, we can say that one way or another, the committee is able to operate in executing the decisions of the ECtHR.”
The final session of the workshop consisted of a conversation and sharing of experiences between the trainers and the participants. Trainers drew attention to the structural problems of the Court, which constitute obstacles in reacting to contemporary issues. They also remarked that although these problems are attempted to be resolved through additional protocols, these attempts fail to overcome the rooted structural problems of the Court.