A SUGGESTION TO THE EUROPEAN COURT OF HUMAN RIGHTS AS A NEW ADMISSIBILITY CRITERIA “EXPENDABLE VICTIM STATUS”

Osman Nesuh Yıldız *

As a jurist I always supported the idea that the European Court of Human Rights (from now on ECtHR or the Court) is not the sacred place of divine justice, it is made by human and to be honest as one of the greatest and the most effective initiatives of the 20th century in the area of protecting human rights and the rule of law. So it would not be fair to try to ruin its long gained dignity with one decision.  The decision I am referring to is the decision of the second section of the ECtHR Hamdi Akın İpek v. Turkey, App. No: 4158/19, October 21, 2021. The full legal assessment of the decision in academic point of view is not the principal aim of this article. But I will just try to show some aspects indicating how the ECtHR bended its own rules based on its own well established case-law in this application.

As is the case in all the other cases of the Court, the decision starts with the title “General context of the case” with a subtitle “the attempted coup d’etat 15 July 2016” at first sight you may find it highly normal but it is not. Because the procedure before the Court is named as “individual application” I beg your attention the word “individual” here, The pressure from the Government side to the İpek Group started months before the attempted coup. Because the government biased about this Group that it is one the financially strong supporters of the Gulen Movement. The seizure of media facilities, appointment of trustees came one after another. The preference of the Court to start with this title aims to ready the people to the idea that the applicant was part of that group alleged to be a terror organization and attempted to stage a coup against a democratically elected government. So you may find it unjust to find his application inadmissible but trust me he deserved it.  By beginning decision in such a way the Court shows that the collective accusative and cumulative approach created by the pro-government media at national level was bought by the Court as well. On the other hand this approach of the Court is in complete contradiction with its other approach of the Court in the following part of the decision. One of the applicant’s argument was that one of the experts which under signed the financial report upon which the decision to appoint trustee was established was biased as he previously shared his some negative opinion about the gulen movement on his social media accounts. The Court replies this argument as this would not be problem in terms of the impartiality of that expert because the opinions he shared was about the Gulen Movement not about the applicant himself in person.

Another aspect of the decision. That in its previous decisison about Turkey, the Court shows an extreme due diligency not use the definitions and the terms used by government. For instance when we examine the cases about the incidents occured in South eastern region of Turkey it is obvious that the Court paid atmost attention not the identify the organisation in those cases as “terror organisation” even in the parts where the arguments of the government are taking place. That was the sensitivity must be shown by such a high international court.  But such diligance and senstivitiy was abandoned in the cases regarding the gulen movement alleged FETO/PDY organisation. The Court from the very begining of this period started with the attempted coup showed great enthusiasm to adopt and use the incriminatory terminology used by the government. But it did it in a smart way by using the parts of the domestic judicial or administrative documents. The decisions taken by the Board of Ministers, the decisions of the first instance or high courts even the advisory opinions of the National Security Board became the main reference texts of the Court. But previously event laws depended on in some administrative practices were being approached in a highly suspicious way and sometimes those regulations were branded as not bearing qualifications such regulation should have, like foreseebility and clarity. But in this application the Court make references to the decisions of the national first instance courts decided to appoint trustee, the decisions of the appellate courts found that decision in compliance with the law and decision of the Constitutional Court rendered upon the individual application of the applicant. Ignoring the fact that even the members of these courts were arrested and detained in this period based on newly created kind of evidences such as “social neigbourhood heresays”

The final approach worth criticizing in this decision that the Court emphasizing the interlocutory nature of the decision of appointing trustee arguing this was not a confiscation decision and that the applicant had legal effective remedies to bring the practices of trustees before courts.

 According to this approach there is no need the article 5 of the Convention in the existence of article 6. As the former is protecting individual liberty which is mostly in danger in the course of criminal judicial proceedings fairness of which is guaranteed by the later. If this is case, why the Court examines the cases about the Convention violations regarding ill-treatment occurs mostly in the very beginning a criminal judicial proceedings or finds violations about the legality of the decisions of detention.

In view of the above, I believe that the Court should regain and fulfill its historical mission, attributed by the member states of the Council of Europe years ago and start to examine these cases based on its well established case-law which were the results of an honest and genuine seek of justice without making no exceptions. Otherwise it will be the Court this time to be judged and found guilty by the higher court of history.

* Member of CrossBorderJurists
Purged Judge in Turkey