British lawyers urge top court to take up post-coup cases

 
 
The Bar Human Rights Committee of England and Wales (BHRC) has urged Turkey’s Constitutional Court to take up the thousands of cases that have been lodged with it during the state of emergency.
 
In a speech on Dec. 19, the Constitutional Court President Zühtü Arslan said about 80,000 cases are pending before the court, noting that some 60,000 of them have been filed after the failed coup attempt of July 15, 2016.
 
Turkish authorities have declared a state of emergency after the failed coup attempt. More than 40,000 people have been jailed pending trial and more than 110,000 have been dismissed from public service in connection with investigations launched over the past months since then. 
 
The top court is yet to conclude any of the applications. It is not known if it has begun hearing them.
 
In a letter to the Constitutional Court president, Zühtü Arslan, BHRC Chairperson Kirsty Brimelow said many of the pending applications “concern issues of vital importance to individuals, and will impact on their fundamental human rights,” adding that the applicants whose applications concern deprivation of liberty are entitled to a speedy determination of the lawfulness of their detention to satisfy the requirements of the European Convention on Human Rights.
 
“We are concerned that by not making any determinations to date in respect of applications which relate to deprivation of liberty, the Constitutional Court has not complied with the speediness requirement under Article 5(4),” of the Convention, Brimelow wrote in the letter, dated Feb. 2.
 
“ As matters currently stand, it appears that that there has been a systemic failure of the court system in Turkey, which is (and continues to be) a severe impairment on access to justice for fundamental human rights abuses,” she also said. “To ensure that the Court’s responsibilities to provide effective access to justice are met, it is essential that cases filed with the court are considered and heard as soon as possible, in particular in relation to those who are held in custody awaiting charge or trial.”
 
The full text of the letter follows:
 
 
2nd February 2017
 
Dear Prof. Arslan,
 
I am writing as the Chairperson of the Bar Human Rights Committee of England and Wales (BHRC) to express our concern at the lack of determination by the Turkish Constitutional Court of cases involving fundamental human rights during the current period of a state of emergency in Turkey.
 
BHRC is the international human rights arm of the Bar of England and Wales. It is an independent body of legal practitioners concerned with the protection of rights, defending the rule of law, and ensuring the fair administration of justice. BHRC regularly appears in cases where there are matters of human rights concern, and has experience in legal systems throughout the world.
 
It is our understanding that thousands of cases have been filed with the Turkish
Constitutional Court (TCC) since the announcement of the state of emergency in Turkey, but that no cases have been heard or resolved. The Human Rights Commissioner has also been informed that as at the end of September 2016 there were around 31,844 people in detention and 1,477 still in police custody.
 
In an Opinion dated 12 December, the Venice Commission observed that by early November 2016 45,000 individual complaints had been received by the Constitutional Court. We understand that you, as the President of the TCC, made a statement on 19 December 2016 at the Istanbul Centre of Arbitration that there were, at that date, around 80,000 individual applications waiting to be considered, and that 60,000 of these applications were received after 15 July 2016.
 
Many of these applications will concern issues of vital importance to individuals, and will impact on their fundamental human rights. Some will concern the deprivation of liberty by the State, where an individual will be entitled to a speedy determination of the lawfulness of their detention to satisfy the requirements of Art 5 (4) of the European Convention on Human Rights. Thus, for there to be an effective remedy for the purposes of Article 5(4), the TCC is required to deal with the application expeditiously.
 
The situation needs to be viewed in the context of the extreme concern about the treatment of certain groups in Turkey. BHRC is especially concerned that, on the available information, at least 81 journalists are imprisoned in Turkey without trial, all of them facing anti-state charges. Figures suggest that Turkey currently has the highest number of journalists in prison of any country in the world (see https://cpj.org/imprisoned/2016.php). Those affected, we understand, include Ahmet and Mehmet Altan along with newspaper editors such as Murat Sabuncu (of Cumhuriyet), and İnan Kızılkaya (of Özgür Gündem), and veteran journalists
Şahin Alpay and Nazlı Ilıcak.
 
We are concerned that by not making any determinations to date in respect of applications which relate to deprivation of liberty, the Constitutional Court has not complied with the speediness requirement under Article 5(4). We are further concerned that thousands of other cases involving fundamental rights of individuals have also not been dealt with. Although the Council of Europe’s Commissioner on Human Rights has stated that it will be a “significant challenge” for Turkey to demonstrate that the Turkish courts can still provide an effective remedy in this context, it is noted that other than a ruling from the TCC that it is unable to rule on the legality of emergency Decree Laws, it has not made a final ruling on a single one of the tens of thousands of applications made to it since the Failed Coup.
 
As matters currently stand, it appears that that there has been a systemic failure of the court system in Turkey, which is (and continues to be) a severe impairment on access to justice for fundamental human rights abuses. To ensure that the Court’s responsibilities to provide effective access to justice are met, it is essential that cases filed with the court are considered and heard as soon as possible, in particular in relation to those who are held in custody awaiting charge or trial. Although we appreciate the level of administrative burden that has been placed upon the court, this should not be an excuse for failing to facilitate access to justice in cases where fundamental rights are at issue.
 
We call on the TCC to begin to hear the thousands of cases that have been lodged with it over the last few months. We also call on the TCC to ensure that it prioritises for urgent consideration and determination those cases where individuals have claimed that their continued detention is unlawful, unjustified and disproportionate.
 
It is important for Turkey to demonstrate that Turkish courts can still provide an effective remedy for potential human rights breaches. We look forward to a response.
 
Yours sincerely,
 
Kirsty Brimelow QC
 
Chairperson, Bar Human Rights Committee of England and Wales (BHRC)