Orhan Kemal Cengiz

Orhan Kemal Cengiz

Will Turkey withdraw from NATO and the Council of Europe?

Turkey’s legal conflicts with Europe can deepen as its economy worsens

We have an unprecedented phenomenon in Turkey, which threatens the European legal order. Turkish judiciary puts intellectuals, writers, activists, and journalists in prison with monumental allegations but when these files reach the European Court of Human Rights (ECtHR), the Court cannot find any crimes that have been committed.

The accusations against these people vary from attempting to overthrow the government, espionage, being leading members of terrorist organizations to inciting violence. People spend years in prison as a result of these allegations; they are rebuked, discredited, and attacked from all angles by the pro-government media but when their cases reach the European Court (ECtHR), this court concludes that there has been no reasonable suspicion of these people having committed a crime at all.

Two realities are colliding, and this collision spells disaster for the European legal order. We have witnessed this repeatedly. Mehmet Altan and Ahmet Altan, who happened to be my clients as well, spent many years in prison for allegedly attempting to overthrow the government. Yet when we took their cases to the Constitutional Court and the European Court of Human Rights, these courts could not find any substance to the allegations against them.

Try to imagine this: you are put on a trial; the prosecutor demands a lifetime prison sentence against you; you spent many years in a cell in a high-security prison and then your case reaches the European level. There, the European judges cannot understand the accusation against you. You spent weeks in police custody, you spent years in prison, and you were treated like a mafia boss or at least as a very dangerous prisoner. All your communications, including those with your lawyers have been limited and intercepted and whenever you were brought to the hospital you spent all your time there in handcuffs. I think that if Kafka would see what is happening in Turkey, he would have written "the Trial-2,3" and others.

For the Altan brothers and some others, it was possible to get out of prison after the decisions of the European Court of Human Rights. However, in some other high-profile cases, Turkish Courts refused to obey the decisions of the ECtHR. One of these is the case of Selahattin Demirtaş and the other one is the one against Osman Kavala. Over three years have passed since the decisions of the European Court of Human Rights, which declared that Turkey, not only violated some fundamental articles of the European Convention of Human Rights but also article 18; in other words, they are in prison because Turkish authorities want to silence them. Demirtaş was the leader of the pro-Kurdish Peoples’ Democratic Party and he was very vocal against Erdogan. Kavala is a businessperson and was accused of orchestrating the Gezi uprising.

In the Kavala case, all court proceedings have been completed and Turkey was found guilty of infringement. This process has only been applied two times; one in Kavala case and the other one against Azerbaijan in the Mamadov case. This procedure clearly shows that the state concerned has not implemented a court judgment and is in clear defiance of it. After the proceedings, Mamadov had been set free whereas Kavala is still in prison with no release in sight.

Apart from the Demirtaş and Kavala cases, there are other developments that show us that Turkey will be declining to implement the judgments of the European Court of Human Rights. In Şorli v. Turkey case, ECtHR found Turkey's widespread practice of criminalizing criticism of Erdogan (as a punishable crime of insulting the president) is a violation of the freedom of expression. In this decision, the Court condemned the very article 299 of Turkish Penal Code, as it allows such a large interpretation of insult that it gives special protection to the president, which is inappropriate for a democratic society.

After this decision, will Turkish Courts obey it and give up criminalizing these so-called "insults" against the president? Could the regime easily put aside such a deterrent tool to silence dissent? As if this penal article is not enough, we now have a specific law punishing "disinformation." I assure you that Turkish prosecutors will find tens of thousands of news and comments that are allegedly violating this new law. I equally assure you that almost all criminal convictions under this law will be condemned by the European Court of Human Rights as being arbitrary and as being contrary to the freedom of expression.

We have a dilemma here: Erdogan's government cannot solve problems in the economy, which are their own making. And these economic problems will deepen after the elections because the populist steps they take in the economy today, which are designed to win the upcoming elections, will deliver terrible consequences after the elections. The deeper the economic crisis, the more repressive the regime will be. Therefore, if Erdogan wins again, we will witness increasing repression of the rights of the people, which will result in more condemnations by the ECtHR. None of these decisions of the ECtHR will be implemented in Turkey because respecting the decision of the Court also means that the government will lose its grip on power, which it can only secure through increasing repression.

We find ourselves in a deep dilemma: The more authoritarian the regime gets, the more it will refuse to obey the rulings of the ECtHR. How long can the Council of Europe tolerate this? How long can Erdogan tolerate being condemned by the European Court for the simple use of the tools that are necessary for him to sustain this regime?

Let us not forget that Turkey withdrew from Istanbul Protocol by a simple decree signed by President Erdogan. The same could easily be done for the European Convention on Human Rights and for other conventions that have started to create headaches for the regime. One cannot continue to be a member of the Council of Europe if they withdraw from the European Convention on Human Rights.

If you are to ask me, I would say that a breakup seems inevitable. Yet the question remains: Will this process stop there? Can a Turkey that leaves the Council of Europe remain as a member of NATO? You can ask yourself other question that you can deduct from the ones I posed. 

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