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Yalçınkaya v Türkiye: The implications and potential consequences of continuing non-compliance

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Dr Suzanne Egan

In light of the recent judgment of the Grand Chamber of the European Court of Human Rights (ECtHR) in Yalçınkaya v Türkiye, this briefing note addresses the implications of national courts disregarding or not recognizing the ECtHR’s judgments on the rule of law and international legal norms. It also examines the potential consequences for states that fail to uphold their obligations under international human rights law, particularly in light of ECtHR judgments. The analysis demonstrates how Turkey’s failure to ensure that its national courts fulfill their obligations to implement the Court’s ruling will lead to a situation incompatible with the rule of law and the proper functioning of the Convention system. The note concludes with recommendations directed at Turkey to implement the Court’s ruling, and to the Council of Europe and non-governmental organizations on urgent actions, including the possibility of sanctions, to induce compliance by the State.

Dr Suzanne Egan is an Associate Professor at the School of Law and founding Director of the UCD Centre for Human Rights. Dr Egan has published extensively in the field of international human rights law. She served two terms as a Member of the Irish Human Rights Commission (from 2001-2011) and has been a Visiting Professor at De Paul Law School, Chicago, the University of Connecticut and a Visiting Fellow at Harvard Law School’s Human Rights Program. She is currently an honorary Visiting Research Fellow at the University of Bristol’s Human Rights Implementation Centre.

In its judgment in Yalçınkaya v. Türkiye, the ECtHR held that there had been violations of Articles 6 (right to a fair trial), 7 (no punishment without law), and 11 (freedom of association) of the European Convention on Human Rights (ECHR) due to the applicant’s trial and conviction by the domestic courts for membership of the FETÖ/PDY based on his use of the ByLock messaging app. The Court held that the violations of Articles 6 and 7 ECHR, arising from the domestic courts’ characterization of the use of ByLock, were systemic in nature and could result in many more similar complaints before the Court. Therefore, as well as ensuring individual redress for the applicant, Turkey was obliged to take general measures to rectify the defects identified in the judgment. In particular, domestic courts are required to take due account of the relevant Convention standards as interpreted and applied in the judgment. The judgment also highlights the superior status of the Convention over domestic law in the Turkish Constitutional order, emphasizing the binding nature of Strasbourg judgments and the fact that no appeal lies against them to the Turkish Constitutional Court (Yalçınkaya v. Türkiye, para. 418).

According to the ECtHR, there are already over 8000 applications on the Court’s docket, and the Court has already communicated five further cases covering 1000 other applications to the government. It is predicted that there is the potential for 100,000 more, given the estimated number of people already prosecuted in Turkey based on the usage of the ByLock app (Kaplankaya, 2023). The judgment has been aptly described as a ‘watershed moment’ in Turkish legal history (Yorulmaz, 2023), highlighting serious problems with the current interpretation and application of anti-terror law by the Turkish judiciary, which have already been found to violate the ECHR by the Strasbourg Court (Yildiz and Spencer, 2020). These issues have significant implications for the population at large.

The Court’s ruling should also be viewed in the context of the high number of ECHR violations found against Turkey since the attempted coup in 2016. In the most recent statistics regarding 2022 alone, the state was found to be in violation in 72 of the 78 judgments delivered by the Court. Turkey currently has the highest number of applications pending before the Court and a track record of refusing to comply with key rulings, notably in the case of Osman Kavala (Kavala v. Türki̇ye, 2022). The Court of Cassation’s decision not to release Kavala following the Strasbourg ruling is consistent with the increasingly strained relationship between the Turkish Constitutional Court and Strasbourg (Turkut, 2023). President Recep Tayyip Erdoğan has described the Yalçınkaya ruling as “the straw that broke the camel’s back,” asserting that Turkey cannot respect the decisions of institutions aligned with terrorist organizations: “We can neither respect the decisions of institutions aligned with terrorist organisations, nor listen to what they say” (The Economist, 2023). The Turkish Minister for Justice has also criticized the Court for questioning the conclusions of the domestic courts and acting as a court of ‘fourth instance’ (Gökçe, 2023).

Key Considerations

Implications of national courts disregarding or not recognizing the ECtHR’s judgments on the rule of law and international legal norms

Given this context, the implications of national courts disregarding or not recognizing the ECtHR’s judgments on the rule of law and international legal norms are significant. According to the principle of subsidiarity, the primary responsibility for implementing the Convention guarantees rests with the national authorities (Mowbray, 2015; Spano, 2018). While states have a choice of means for implementing the Convention in national law, they are responsible for the results, with supervision by the ECtHR arising only when there is an alleged failure by the state to implement the rights in national law.

The ECtHR has long recognized the key role played by national courts in implementing the Convention. Former President of the Court, Jean-Paul Costa, remarked in 2010 that national judges must interpret, apply, and ensure the Convention prevails over incompatible rules or practices: “National judges must interpret it, apply it, ensure that it prevails over rules or practices that are incompatible with it. The more they do so, the less our Court will have to intervene, other than to act as a final rampart as its founding fathers intended” (Costa, 2010, p. 5).

In Yalçınkaya, the Court is clear that the overall responsibility under Article 46 (1) of the ECHR for implementing its judgment rests with the state as a whole. However, it explicitly finds that the breaches in this case are systemic in nature and arise directly from the interpretation and application of national law by national courts. The Court’s indication of general measures, including specific direction to the national courts, is a procedural manifestation of the principle of subsidiarity (Yalçınkaya, para. 417) – one that is in line with the ongoing dynamic evolution of the subsidiarity principle (Mowbray, 2015; Spano, 2018).

Failure by the State to take necessary corrective action, such as a refusal by national courts to apply the Court’s ruling, constitutes a failure to execute the judgment in accordance with Article 46. A failure to execute a ruling of the Court to which the State is party is a failure to implement the provisions of the treaty. States parties to the ECHR are bound by the pacta sunt servanda rule reflected in Article 26 of the Vienna Convention on the Law of Treaties. It is generally recognized that international human rights treaties have a ‘special character’ going beyond the basic notion of reciprocity that underpins most ordinary treaties.

In the case of the ECHR, this special character is reflected in its design as a ’constitutional instrument of European public order’ (Loizidou v Türkiye (Preliminary Objections), para 75), inspired by and infused with the rule of law (Engel & Others v The Netherlands, para. 69), and underpinned by a collective guarantee to protect the fundamental rights of individuals. Specifically, regarding the implementation and execution of judgments, the Court emphasized in Kavala that public authorities in member States must act in good faith. Failure to implement a final binding judicial decision leads to situations incompatible with the rule of law (Kavala, paras. 169, 170).

The Venice Commission includes as a core benchmark an assessment of whether the domestic legal system ensures compliance with human rights law, including binding decisions of international courts (emphasis added) (Venice Commission, 2016, p. 19). The independence of the judiciary is crucial, “…including their implementation, will depend on a number of domestic factors characterising the delicate relationship between the legislature and the executive on the one hand and the judiciary on the other” (Bantekas and Oette, 2020, p. 87-88). Hunneus notes a range of further factors underlying resistance by national courts to the rulings of an international court, including institutional constraints, culture and judicial politics (Hunneus, 2011, p.497).

Regardless of the reasons for resistance by national courts to the rulings of an international court, non-implementation has a corrosive effect on the authority of the Court and the effectiveness of its decisions, negatively affecting the impact of international human rights norms. Some compliance scholars have drawn attention specifically to the way in which non-compliance may be used as a deliberate ‘delegitimizing’ strategy to constrain an international court and to diminish the impact of its rulings (Helfer and Slaughter, p. 952; Hunneus, 2013). Stafford and Jaraczewski argue that “…systemic non-implementation of ECtHR judgments is a profound sign that human rights, democracy and the rule of law are under threat” (Stafford and Jaraczewski, 2022) and it is significant that further to their call, non-compliance with ECtHR judgments is now included as a specific feature of the EU’s Rule of Law Reports procedure.

Potential consequences for states that fail to uphold their obligations under international human rights law, particularly in light of ECtHR judgments

As judgments of the ECtHR may require action by multiple national actors, it is the State as a whole that is responsible for executing the Court’s orders. The Committee of Ministers of the Council of Europe is responsible for supervising execution under Article 46/2 of the Convention (Harris et al., 2023, p. pp.185-204). According to the Committee’s working methods, cases involving structural or systemic problems, like Yalçınkaya, are given priority and dealt with under the Committee’s enhanced supervision procedure.

Among the consequences for a state that refuses to implement a judgment of the Court is the prospect of the Committee taking infringement proceedings against it under Article 46(4) of the Convention. The Explanatory Memorandum to Protocol 14 notes that the procedure’s existence and the threat of using it should act as an incentive to execute the Court’s judgments: “…the procedure’s mere existence, and the threat of using it, should act as an effective new incentive to execute the Court’s judgments” (Council of Europe, 2004, para. 100). However, the procedure has been invoked only twice since 2010, with limited effects. Donald and Leach have since described this “official line” as “hopelessly naïve and optimistic” in view of its extremely limited effects to date in theory and practice (Donald and Leach, 2023, p. 7). While Mammadov was eventually released following the Court’s finding of an infringement, Kavala has not been released and was instead sentenced to life imprisonment by national courts in Turkey without reference to the ECtHR judgments (Çalı, 2023, p. 4). Thus, while the consequence for any state that is subject to the procedure may appear to be that of intensified political pressure, the reality is that the procedure does not actually entail any tangible concrete consequence or sanction even where it is invoked, and the Court finds that the state has failed to fulfil its obligations under Article 46(1). Accordingly, many authors have advocated the need for more robust measures to be taken by the Council of Europe as a whole in cases such as Kavala where a judgment arising from the infringement procedure is ignored. These include suggestions for direct dialogue with domestic institutions, including courts who are responsible for the execution, the introduction of fines for non-implementation and ultimately the imposition of even more robust sanctions, dealt with further below (Çalı, 2023; Keller and Gurash, 2023; Muižnieks and Patricio, 2023; Stafford, 2023).

Non-compliant States may also be subject to the full monitoring procedure of the Parliamentary Assembly of the Council of Europe (PACE), where failure to comply with judgments of the ECtHR is a specific focus. Turkey has been under full monitoring since 2017. Donald and Speck characterise this procedure as an inherently political one, that is persistent and public, leaving “…backsliding states nowhere to hide from the full glare of the Assembly’s scrutiny” (Donald and Speck, 2021).

The ultimate consequence for failure to fulfill the obligation to implement judgments of the ECtHR could be sanctions or expulsion from the Council of Europe. In this respect, as noted, there are currently no sanctions possible as regards the infringement procedure; however, the PACE and the Committee of Ministers (CoM) of the Council of Europe each have significant powers in this regard. Under Rules 8 and 10 of its Rules of Procedure, PACE can deprive or suspend the exercise of some of the rights of a State of participation or representation of a national delegation’, non-ratification of the credentials of a parliamentary delegation or ultimately, the Assembly may propose to the CoM that it expel the Member State from the organisation. The CoM is empowered to suspend and ultimately expel a member by virtue of Article 8 of the Statute of the Council of Europe where the state has ‘seriously violated’ the statutory aims of the organisation which includes respect for the rule of law and human rights. Donald and Leach, among others, are critical of the reluctance of PACE to use its powers of suspension in a more forthright manner, including with respect to states like Azerbaijan and Turkey “which have persisted with backsliding despite being under full monitoring” (Donald and Speck, 2021, p. 24). Others have questioned why the CoM has failed to use its statutory powers more robustly “…especially where there are clear signs of a crisis and it is more beneficial for the legitimacy, effectiveness and reputation of the international organization to expel recalcitrant members’ (Dzehtsiarou and Coffey, 2019, p. 476). The latter authors specifically highlight the case of Turkey in their analysis; Muižnieks and Patrício likewise, while also criticising the CoM for its failure to take concerted action against Russia before it was ultimately expelled in 2022 (Muižnieks and Patricio, 2023).

A particular consequence of Turkey’s continued non-compliance is its effect on its candidacy for accession to the European Union. Respect for the Convention is effectively a political requirement for EU Membership (The Economist, 2023). The European Commission’s most recent progress report on Turkey highlights serious backsliding regarding democratic institutions and the judiciary, including the continued refusal to implement ECtHR judgments (European Commission, 2023, pp. 23–27).

Recommendations

Turkey is legally obliged to comply with the individual and general measures indicated by the ECtHR in the Yalçınkaya judgment and ensure its national courts fulfil their obligations to implement the ruling. Failure to do so will deepen Turkey’s defiant stance regarding previous rulings, which is corrosive to the Court’s authority and incompatible with the rule of law. It is recommended that Turkey implement the European Commission’s specific recommendations, which include creating a political and legal environment in line with European standards that allows the judiciary to operate independently and impartially, strengthening judicial responsibilities while respecting the separation of powers, and ensuring lower courts respect judgments by the Constitutional Court in line with ECtHR jurisprudence (European Commission, 2023).

The Committee of Ministers should prioritize monitoring the Yalçınkaya judgment with clear timelines, establish a mechanism for dialogue with national courts, and consider ways to encourage compliance in domestic proceedings. The Committee of Ministers and PACE should act swiftly against Turkey’s reluctance to comply with the Court’s ruling, including taking infringement proceedings, imposing graduated sanctions, and considering expulsion as a last resort.

Non-governmental organizations and other actors should continue monitoring the implementation of the judgment at the national level and the actions taken by the Council of Europe institutions to induce compliance by Turkey.

This article was first published in The Human Rights in Context Blog on May 28.

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