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THE EUROPEAN CONVENTION IN CONFLICTED SOCIETIES: THE EXPERIENCE OF NORTHERN IRELAND AND TURKEY

  • Onder Bakircioglu (a1) and Brice Dickson (a1)
Abstract
Abstract

Since the entry into force of the European Convention on Human Rights there have been many serious conflicts in Europe. This article examines the role played by the Convention in two of those conflicts: that in Northern Ireland between supporters of the territory remaining part of the United Kingdom and supporters of Northern Ireland becoming part of a reunified Ireland, and that in Turkey between those who advocate for a unified Turkish State and those who want a Turkey which grants greater rights to Kurds and accepts greater autonomy for the Kurdish-dominated southeast region. The principal goal is to compare how the institutions in Strasbourg have responded to applications lodged by victims of human rights abuses allegedly committed during the two conflicts. The comparison seeks to identify to what extent the European Court of Human Rights has adopted principles and practices which can contribute to a reduction in human rights abuses during times of conflict.

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1 The former President of the European Commision, Stefan Trechsel, underscored this point during his address to Turkish public prosecutors in 1997. He noted that an effective fight against terrorism required national authorities to ‘remain on the side of Justice’. For this was ‘not just a moralist, softie, “do-gooder” postulate’, but ‘a postulate of cool reasoning, of cost-benefit analysis’. He added that one ‘must take into account that for every civilian who was ill-treated or killed or who disappeared there will be a dozen or more others (his family, his friends) who will be driven to the side of the [terrorists]’. See S Trechsel, ‘Turkey Wants to Respect Human Rights: Address to Turkish Public Prosecutors (Ankara, 17 February 1997)’ (1997) 18 HRLJ 471, 472.

2 Lawless v Ireland (1979–80) 1 EHRR 1, 13 and 15.

3 Ireland v UK (1979–80) 2 EHRR 25.

4 France, Norway, Sweden, Denmark and the Netherlands v Turkey (1985) 44 DR 31.

5 Denmark v Turkey (2000) 29 EHRR CD35.

6 Cyprus v Turkey (2002) 35 EHRR 30.

7 Leach P, Taking a Case to the European Court of Human Rights (3rd edn, Oxford University Press 2011) 386–8; Harris DJ et al. , Law of the European Convention on Human Rights (3rd edn, Oxford University Press 2014) 810–11. Though see the more upbeat account given by Gilbert G, ‘The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights’ (2002) 24 HumRtsQ 736 .

8 See Dickson B, The European Convention on Human Rights and the Conflict in Northern Ireland (Oxford University Press 2010).

9 This point is confirmed by the Appeals Chamber of the International Court for the Former Yugoslavia in Tadić, where it was held that such traditional distinctions as those between international and non-international armed conflicts gradually lose weight in terms of basic human rights violations, largely because international law is no longer exclusively concerned with safeguarding State interests. In the court's language, ‘a State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach’. Prosecutor v Duško Tadić No IT-94-1, ICTY, 2 October 1995, paras 96–97.

10 A and Others v UK (1970) Ybk 340, 434. A chronology of the proceedings and exchange of correspondence is set out at 358–386.

11 Devlin v UK (1971) Ybk 634, 37 CD 146 (3 February 1971).

12 MM v UK and X, Y and Z v UK App Nos 5155/71, 5727/72, 5744/72, 5857/72, 6 DR 13 (1976) and 14 DR 5 (1978). X v UK App No 5459/72, 40 CD 7 (1972) dealt with the alleged interference with correspondence.

13 Boyle K et al. Law and State: The Case of Northern Ireland (Martin Robertson 1974) ch 2.

14 For details see Hogan G and Walker C, Political Violence and the Law in Ireland (Manchester University Press 1989) 86100 .

15 (1979–80) 1 EHRR 1. See generally Doolan B, Lawless v Ireland (1957–1961): The First Case before the European Court of Human Rights (Ashgate Publishing 2001).

16 Lawless v Ireland 1960 (1979–80) 1 EHRR 15, para 28.

17 See Gross O and Aoláin F Ní, ‘From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights’ (2002) 23 HumRtsQ 625 ; Bakircioglu O, ‘The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases’ (2007) 8 German Law Journal 711 .

18 The details of this decision-making process are described by Schabas W and O'Sullivan A in ‘Of Politics and Poor Weather: How Ireland Decided to Sue the United Kingdom under the European Convention on Human Rights’ (2007) 2 Irish Yearbook of International Law 3 .

19 Ireland v UK App No 5310171 (1971) 14 Ybk 100.

20 (1972) 15 Ybk 76.

21 (1976) 19 Ybk 512; publications of the European Court of Human Rights, Series B: Pleadings, Oral Arguments and Documents, Vol 23–1 (1980).

22 (1979–80) 2 EHRR 25.

23 Ireland v UK (1979–80) 2 EHRR 25, para 207.

24 See generally Hartman JF, ‘Derogations from Human Rights Treaties in Public Emergencies’ (1981) 22 HarvardInt'lLJ 1 .

25 Prevention of Terrorism (Temporary Provisions) Act 1974, section 7(2), later replaced  by comparable provisions in 1976, 1984 and 1989; it was not repealed until the Terrorism Act 2000 came into force in February 2001.

26 (1989) 11 EHRR 117. See too O'Hara v UK (2002) 34 EHRR 812.

27 Brannigan and McBride v UK (1993) 17 EHRR 539.

28 Marshall v UK App No 41571/98, decision of 19 July 2001.

29 Fox, Campbell and Hartley v UK (1991) 13 EHRR 157. Contrast Murray (Margaret) v UK (1994) 19 EHRR 193.

30 See (n 26).

31 (2000) 29 EHRR CD 184.

32 (1984) 6 EHRR 391.

33 (2008) 46 EHRR 48.

34 (2007) 44 EHRR 41. See too Magee v UK (2016) 62 EHRR 10.

35 McVeigh, O'Neill and Evans v UK (1983) 5 EHRR 71. In 2015 the UK Supreme Court (with Lord Kerr, the judge from Northern Ireland, dissenting) found the port powers in Schedule 7 to the Terrorism Act 2000 to be compatible with arts 5, 6 and 8 of the ECHR: Beghal v DPP [2015] UKSC 49, [2016] 1 AC 88.

36 (1973) Ybk 212, 43 CD 122 (admissibility); (1975) 4 DR 4 (merits).

37 (1973) Ybk 212, 216.

38 (1973) Ybk 212; 43 CD 122.

39 ibid.

40 The Commission decided to allow the overlapping allegations to be considered because under art 27(1)(b) of the Convention an application is to be excluded from consideration if it is substantially the same as a matter which has ‘already been examined’, and the inter-State case had not yet been examined.

41 (1973) 43 CD 122, 146.

42 The Commission quoted what it had said in the Greece v UK (No 1), App No 3321–3/67; (1969) 12bis Ybk at 194.

43 (1975) 4 DR 4.

44 ibid 77–85.

45 Statement of 2 March 1972 (see Ireland v UK (1979–80) 2 EHRR 25, para 153). The world was to learn in 2011, in the report of the Baha Mousa Inquiry, that in fact the use of these techniques had not been abandoned by the British army. Some of them were still being employed by UK forces in Iraq in 2003: <www.bahamousainquiry.org> vol 2, Pts IV– IX.

46 Published in 1976–78 ECHR, Ser B, vol 23–1, 377–90; extracts appeared in (1976) 19 Ybk 512.

47 See O'Boyle M, ‘Torture and Emergency Powers under the European Convention on Human Rights: Ireland v United Kingdom ’ (1977) 71 AJlL 674 .

48 (1979–80) 2 EHRR 25.

49 He was the Irish member of the European Commission from 1965 to 1971 and was the Irish judge on the Court from 1971 to 1980. When appointed to the Commission he was 69, so when he retired from the Court he was 84. He had been called to the Bar before the partition of Ireland, in 1919, and was made State Counsel in 1939.

50 In the words of Brian Simpson: ‘The British declined to identify either the locations where they had been used or the senior individual who authorized their use. The British did not produce Brigadier Kitson, the military officer in command in Belfast at the time, as a witness. Witnesses who were produced were instructed to answer no questions about the practice of interrogation. Plainly, there was something deeply embarrassing to conceal, though the squalid details of what was done were already public knowledge. One can only speculate as to what else had to be concealed.’ (Round up the Usual Suspects: The Legacy of British Colonialism and the European Convention on Human Rights’ (1996) 41 LoyLRev 629, 707.) Simpson concludes this long article by saying that ‘the United Kingdom's record of failure under the European Convention, with the high point reached in Ireland v United Kingdom, can only be regarded as lamentable’ (708).

52 Leave to bring judicial review proceedings was granted on 4 June 2015: see <www.bbc.co.uk/news/uk-northern-ireland-33008186>.

54 Boyle K, ‘Human Rights and Political Resolution in Northern Ireland’ (1982) 9 YaleJInt'lL 166–7.

55 Tyrer v UK (1978–80) 2 EHRR 1, para 31.

56 (2000) 29 EHRR 403.

57 ibid para 101.

58 Aoláin F Ní, ‘The European Convention on Human Rights and its Prohition on Torture’ in Levinson S (ed), Torture: A Collection (Oxford University Press 2004) 213, 216.

59 Stewart v UK (1985) 7 EHRR CD453.

60 Kelly v UK (1993) 74 DR 139.

61 Farrell v UK (1983) 5 EHRR 465. See too Caraher v UK (2000) 29 EHRR CD119, where the European Court rejected an argument that the UK was operating an administrative practice of ‘buying off’ the families of victims shot by security forces by offering them compensation.

62 McDaid v UK (1996) 22 EHRR CD197.

63 For an account of how this duty to plan carefully has been subsequently developed by the European Court see Dickson B, ‘The Planning and Control of Operations Involving the Use of Lethal Force’ in Early L et al. (eds), The Right to Life under Article 2 of the European Convention on Human Rights (Wolf Legal Publishers 2016) 4759 .

64 McCann v UK (1996) 21 EHRR 97, para 149.

65 See eg Akdıvar v Turkey (1996) 23 EHRR 143.

66 Jordan v UK (2003) 37 EHRR 2; Kelly v UK App No 30054/96; McKerr v UK (2002) 34 EHRR 20; Shanaghan v UK App No 37715/97.

67 See McShane v UK (2002) 35 EHRR 23; Finucane v UK (2003) 37 EHRR 29; Brecknell v UK (2008) 46 EHIRR 42; Hemsworth v UK App No 58559/09, judgment of 16 July 2013.

68 See eg Menteş  v Turkey (1998) 26 EHRR 595; Selçuk and Asker v Turkey (1998) 26 EHRR 477.

69 eg Hemsworth v UK (n 67), where the Court awarded the wife and father of a deceased man €20,000 in compensation under art 2. Damages have also been awarded for investigative delay in domestic courts: see eg Re Jordan's Applications [2015] NICA 66, where £7,500 was awarded in compensation for delays caused by the Police Service of Northern Ireland during the inquest into a killing.

70 (1996) 22 EHRR 29.

71 Averill v UK (2000) 31 EHRR 36.

72 Magee v UK (2000) 31 EHRR 35.

73 (1999) 27 EHRR 249. See too Devenney v UK (2002) 35 EHRR 643 and Devlin v UK (2002) 34 EHRR 1029, where £10,000 was awarded for loss of opportunity in each case.

74 For further details see Dickson (n 8) 182–4.

75 By the end of 2016, the ECtHR had delivered 3,270 judgments concerning Turkey, of which 2,889 found at least one violation of the Convention. This places Turkey at the apex of the ECtHR's condemnation profile, the next worst State being Italy, with 2,351 judgments of which 1,791 found at least one violation. See ‘Violations by Article and by State, 1959–2016’, available on the website of the ECtHR  at <www.echr.coe.int/Documents/Stats_violation_1959_2016_ENG.pdf>.

76 There is also a growing Kurdish political dimension in neighbouring Northern Iraq and Syria. The Turkish State is concerned about the potential establishment of an independent Kurdistan in its southern borders, for it suspects that such a development might add fuel to Kurdish separatism within Turkey.

77 See generally Arat ZF Kabasakal (ed), Human Rights in Turkey (University of Pennsylvania Press 2007); Kuru AT and Stepan Al (eds), Democracy, Islam and Secularism in Turkey (Columbia University Press 2012).

78 See D Filkins, ‘The Thirty-Year Coup: An Exiled Turkish Cleric's Shadow Army’ The New Yorker (17 October 2016) 60–71; also BBC News, ‘Turkey Coup: What is Gulen Movement and What Does it Want?’ (21 July 2016) available at <www.bbc.co.uk/news/world-europe-36855846>.

79 Council of Europe, Notification of Communication, Ref: JJ8190C, Tr./005-192 (25 July 2016) available at  <https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2930083&SecMode=1&DocId=2380796&Usage=2.>

80 Soon after the exercise of such emergency powers, the Council of Europe's Commissioner for Human Rights, Nils Muižnieks, urged Turkey to ‘put mechanisms in place in order to ensure safeguards against abuse and to preserve separation of powers and the rule of law’. See Commissioner for Human Rights, ‘Statement: Measures Taken under the State of Emergency in Turkey’ (26 July 2016) available at <www.coe.int/da/web/commissioner/-/measures-taken-under-the-state-of-emergency-in-turkey>.

81 The Turkish State asserts that the purpose of the emergency is to combat swiftly and efficiently the terrorist organization which is responsible for the failed putsch. See Sabah, ‘OHAL 3 Ay Uzatıldı (State of Emergency Extended by 3 Months) (4 October 2016) available at <www.sabah.com.tr/gundem/2016/10/04/ohal-3-ay-uzatildi>; Sabah, ‘OHAL’ in 3 Ay Uzatılması Faydalı Olur’ (Extension of State of Emergency would be Beneficial) (30 September 2016) available at <www.sabah.com.tr/gundem/2016/09/30/ohalin-3-ay-uzatilmasi-faydali-olur>. Reuters, “Turkey Extends Emergency Rule to Maintain Purge of Gulen Supporters” (4 January 2017) available at: <http://uk.reuters.com/article/uk-turkey-security-emergency-idUKKBN14N0PA>.

82 For instance, US Secretary of State John Kerry stated that: ‘We support bringing the perpetrators of the coup to justice, but we caution a reach that goes beyond that’. See Financial Times, ‘US and EU Leaders Warn Turkey's Erdogan over Post-Coup Crackdown’ (18 July 2016) available at <www.ft.com/content/b82ef35a-4cc3-11e6-88c5-db83e98a590a>. At the time of writing the possibility of reintroducing the death penalty for the failed coup plotters is being discussed in Turkey. However, the EU has firmly warned that restoration of the death penalty would rule out Turkey's bid for EU membership. See The Guardian, ‘Europe and US Urge Turkey to Respect Rule of Law after Failed Coup’ (18 July 2016) available at <www.theguardian.com/world/2016/jul/18/european-leaders-urge-turkey-to-respect-rule-of-law-after-failed-coup>; Sabah, ‘Darbecilere İdam Cezası Masaya Gelecek’ (Death Penalty on the Table for Putschists) (16 July 2016) available at <www.sabah.com.tr/gundem/2016/07/16/darbecilere-idam-cezasi-masaya-gelecek>. Such a move would also jeopardize Turkey's membership of the Council of Europe because of the Council's commitment to complete abolition of the death penalty as evidenced by Protocols 6 and 13 to the European Convention.

83 Report of the Turkish Parliamentary Scrutiny Committee Established for Studying and Determining Necessary Measures for the Problems of Citizens Who Emigrated Because of Village Evacuations in the East and Southeast, (10/25), 1997, No 532, 1.

84 See D Kurban et al., ‘Supranational Rights Litigation, Implementation and the Domestic Impact of Strasbourg Court Jurisprudence: A Case Study of Turkey’ (2008) Project Report Funded by the European Commission 4–10.

85 Akdıvar (n 65).

86 See (n 36) ff.

87 Akdıvar (n 65) paras 70 and 77.

88 Aksoy v Turkey (1996) 23 EHRR 553, para 53; Menteş (n 68) para 61.

89 Salih Orhan v Turkey (1997) Commission Admissibility Decision, App No 25656/94.

90 Akdıvar, Çiçek, Aktaş and Karabulut v Turkey (1994) Commission Admissiblity Decision, App No 21893/93; also see Cagirca v Turkey (1994) Commission Admissiblity Decision, App No 21895/93.

91 Akdıvar (n 65) paras 51–55.

92 Mizgin Ovat v Turkey (1995) Commission Admissiblity Decision, App No 23180/94; Akdıvar (n 65) para 54.

93 Akdıvar (n 65) paras 105–106.

94 Kurt v Turkey (1998) ECHR 44.

95 ibid paras 153–165

96 Orhan v Turkey App No 25656/02, judgment of 18 June 2002.

97 See Tanrıkulu v Turkey (2000) 30 EHRR 950, paras 126–133; Aksoy (n 88) paras 101–106.

98 See eg Aksoy (n 88); Aktas v Turkey (2003) 38 EHRR 18; Aydın v Turkey (1997) 25 EHRR 251.

99 See Leach P et al. , International Human Rights and Fact Finding: An Analysis of the Fact-Finding Missions Conducted by the European Commission and Court of Human Rights (Human Rights and Social Justice Research Institute at London Metropolitan University 2009) 26.

100 The European Commission delegated a group of its members to hear the testimony of no fewer than 119 witnesses put forward by the Irish and UK governments; this took a period of 30 days. In addition there were 11 days of oral submissions made to the Commission by the two governments.

101 See Kaya v Turkey (1999) 28 EHRR 1; Ergi v Turkey (2001) 32 EHRR 18; Çakıcı v Turkey (2001) 31 EHRR 5; Aydın (n 98); Tanrıkulu (n 97). See also Cali B, ‘The Logics of Supranational Human Rights Litigation, Official Acknowledgement, and Human Rights Reform: The Southeast Turkey Cases before the European Court of Human Rights, 1996–2006’ (2010) 35 Law & Social Inquiry 325 .

102 Ipek v Turkey (2004) ECHR 74, para 137.

103 Orhan (n 89) paras 393–394.

104 Strasbourg organs came to refrain from fact-finding hearings after the end of 1990s, when the conflict lost its intensity and Turkey's ambition to join the EU had instigated legal reforms. The new Court's struggle to deal with the increasing backlog of cases and the expensive nature of the fact-finding missions also contributed to this development. See Leach (n 92) 41ff.

105 Before the recognition of the right of individual petition, the inter-State mechanism was invoked a few times to address the issue of systematic violations. See Cyprus v Turkey, App No 8007/77, 13 D&R 85 (1979); Cyprus v Turkey (1982) EHRR 482; France, Norway,Denmark, Sweden and The Netherlands v Turkey, App Nos 9940-44/82, 35 DR 143 and 44 DR 31 (1985).

106 See Reidy A et al. , ‘Gross Violations of Human Rights: Invoking the European Convention on Human Rights in the Case of Turkey’ (1997) 15 NQHR 161 , 165.

107 Interview with Françoise Hampson, Ankara, 9 March 2008, cited in Kurban et al. (n 84) 5.

108 ibid.

109 See Kamminga MT, ‘Is the Euopean Convention on Human Rights Sufficeintly Equipped to Cope with Gross and Systematic Violations,’ (1994) 12 NQHR 153 .

110 Aksoy (n 88) paras 46–47.

111 ibid paras 50–57.

112 On 6 August 1990 Turkey notified the Secretary General of the Council of Europe that, due to the intensity of terrorist actions in South East Anatolia, Turkey was derogating ‘from rights enshrined in the following provisions of the European Convention [on] Human Rights and Fundamental Freedoms: Arts 5, 6, 8, 10, 11 and 13’. See Nuray Şen v Turkey App No 25354/94, judgment of 30 March 2004, para 16.

113 Aksoy (n 88) paras 71–78.

114 Nuray Şen (n 112) paras 25–29; Bilen v Turkey App No 5337/02, decision of 24 May 2007, paras 44–50.

115 Demir and Others v Turkey (1998) 33 EHRR 43, para 50.

116 Akdıvar (n 65) para 60.

117 ibid 88.

118 Kurt (n 94), para 147.

119 Akdıvar (n 65); Hasan Ilhan v Turkey, App No 22494/93, judgment of 9 November 2004,

120 Akdıvar (n 65) para 99; Hasan Ilhan (n 119) para130.

121 Mahmut Kaya v Turkey App No 22535/93, judgment of 28 March 2000, para 128.

122 It is worth noting that Stefan Trechsel, the former President of the European Commission of Human Rights, warned Turkey in 1997 that unless it brought about dramatic improvements in the way it handled its anti-terrorism operations, the Strasbourg bodies might reconsider their position regarding the question whether there was indeed an ‘administrative practice’ in Turkey. He noted that: ‘So far, the Commission has consistently left open the question of whether it is faced with an administrative practice, i.e. a frequent occurrence tolerated by the authorities. But it cannot be excluded that it shall one day give an affirmative answer to that question if there is no radical change. This would mean that the question of exhaustion of domestic remedies would not even arise anymore.’ See Trechsel (n 1) 473.

123 The PKK, too, contributed to forced displacement of people, especially by targeting those who agreed to become ‘village guards’ to help fight the insurgency.

124 Since the capture of the PKK leader in 1999, the government has announced a number of programmes to encourage the return of the forcefully displaced people. Nevertheless, the programmes have failed due to notable deficits in planning and financing the resettlement.

125 Ayder v Turkey (2004) App No 23656/94, judgment of 8 January 2004, paras 110–115; Yöyler v Turkey (2003) App No 26973/95, judgment of 24 July 2003, para 74.

126 Dulaş v Turkey App No 25801/94, judgment of 30 January 2001.

127 ibid paras 53–55

128 Yöyler (n 125).

129 ibid paras 71–76; see also Selçuk and Asker (n 68) paras 77–78.

130 Menteş (n 68); Akdıvar (n 65).

131 Selçuk and Asker (n 68) paras 83–87.

132 Benzer v Turkey App No 23502/06, judgment of 12 November 2013.

133 Christof Heyns, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,’ Human Rights Council, 29th Session, A/HRC/29/37/Add 4.

134 Judge Bonello criticized this approach by noting that the finding of a substantive violation should not rest on the applicant's capacity to produce evidence in cases where the State wrongfully obstructs access to relevant evidence: Tahsin Acar v Turkey (2004) 38 EHRR 2, Concurring Separate Opinion of Judge Bonello, paras 5–12.

135 See, among others, Çakıcı (n 101) paras 8587; Tahsin Acar v Turkey (n 134) para 234; Buldan v Turkey, App No 28298/95, judgment of 20 April 2004, para 90; Nuray Şen v Turkey (No 2) (n 112) para 179.

136 Kurt (n 94).

137 ibid para 108.

138 ibid paras 128–129.

139 Çakıcı (n 101).

140 ibid.

141 ibid.

142 Timurtaş v Turkey  (2001) 33 EHRR 6.

143 ibid paras 81–90. For a similar conclusion reached by the Court, see Orhan (n 96).

144 Timurtaş (n 142) para 85.

145 In his dissenting opinion Judge Gölcüklü, the Turkish judge, rejected the idea that substantial factual differences in the present case could justify a departure from the precedent set in Kurt. He noted that the above-mentioned arguments put forward by the majority to distinguish the instant case were simply ‘artificial and superficial, assertions unsupported by fact, a sort of trompe-l'œil’: ibid, Partly Dissenting Opinion of Judge Gölcüklü, para 4.

146 Aksoy (n 88).

147 ibid para 64.

148 ibid para 61.

149 Dikme v Turkey App No 20869/92, judgment of 11 July 2000.

150 ibid para 95.

151 Akkoç v Turkey (2002) 34 EHRR 51.

152 ibid para 115.

153 Aydın (n 98).

154 ibid para 80.

155 ibid para 86.

156 International Criminal Tribunal for Rwanda, The Prosecutor v Jean-Paul Akayesu, ICTR-96-4-T, Trial Chamber 1, 2 September 1998.

157 Sakık v Turkey (1998) 26 EHRR 662, paras 44–58.

158 See Aydın (n 98) paras 103–109; Dikme (n 149) paras 98–104.

159 Batı v Turkey (2006) 42 EHRR 37.

160 ibid para 147.

161 These criteria were first established at the Copenhagen European Council in 1993; they are since reflected in art 49 of the Treaty on European Union. For negotiations to get started a candidate country must satisfy at least the first criterion, which is that it enjoys stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.

162 SSCs were set up under the 1982 Turkish Constitution to deal with offences against national security. In the precedent-setting case of Incal v Turkey (1998) 29 EHRR 449 the ECtHR found a violation of art 6 in view of the presence of a military judge among the members of the SSC.

163 Act No 4963, 30 July 2003.

164 Act No 5170, 7 May 2004.

165 Act No 5982, 13 May 2010. Celebrating this reform, the ECtHR based its inadmissibility decision in Uzun on the notion that domestic remedies had not been exhausted: Uzun v Turkey App No 10755/13, decision of 30 April 2013, paras 68–71.

166 Ümmühan Kaplan v Turkey App No 24240/07, pilot judgment of 20 March 2012.

167 ECtHR Annual Report 2013, Registry of the European Court of Human Rights Strasbourg (2014) 8.

168 See The Law on the Compensation of Damages that Occurred due to Terror and the Fight against Terror, Act No 5233, 17 July 2004.

169 Salduz v Turkey (2009) 49 EHRR 19. In this case the Grand Chamber ruled that all persons held in custody under the age of 18 should be given access to legal advice before being questioned by the police.

170 After the Salduz case (ibid) had been lodged with the ECtHR in 2002, Turkey adopted Act No 4928 on 15 July 2003 to lift restictions on access to legal assistance for cases tried before the SSCs. Also, a new Code of Criminal Procedure entered into force on 1 June 2005; this expanded the scope of the right to access to legal assistance for those on remand.

171 Act No 5218, 14 July 2004.

172 Act No 5271, 4 December 2004.

173 The emergency regime expired when it was not renewed on 30 November 2002.

174 Art 42 of the Constitution prohibits the education of children in their non-Turkish mother tongues.

175 In 1991, the then president, Suleyman Demirel, for the first time spoke of a ‘Kurdish reality’ in the Turkish Republic. Prior to this, Kurds were argued to be Turks who had changed their language. In 1936, the Governor of Tunceli (Dersim) maintained that Kurds were none other than ‘mountain Turks’. See further, Kirişçi K and Winrow GM, The Kurdish Question and Turkey: An Example of Trans-State Ethnic Conflict (Frank Cass & Co Ltd 1997) 102–3.

176 It is usually argued that the bureaucratic and judicial elites in Turkey often see it as their mission to preserve the legacy of the centralized political system to the detriment of the interests of non-majority cultural groups. See Özbudun E and Türkmen F, ‘Impact of the ECtHR Rulings on Turkey's Democratization: An Evaluation’ (2013) 35 HumRtsQ 985 , 1002.

177 At the end of 2016 some 15.8 per cent of the applications pending at the ECtHR were against Turkey (12,600 out of 79,750): ECtHR, Applications pending before a judicial formation 31/12/16, <www.echr.coe.int/Documents/Stats_pending_2016_ENG.pdf> Only Ukraine was higher, at 22.8 per cent.

178 Committee on Legal Affairs and Human Rights, ‘Implementation of Judgements of the European Court of Human Rights: 8th Report (23 July 2015) 3.

179 European Commission, ‘Commission Staff Working Document: Turkey 2015 Report’ (10 November 2015).

180 Parliamentary Assembly, ‘Implementation of Judgments of the European Court of Human Rights’, Doc 13864 (9 September 2015) 27ff.

181 See the Act on the Prosecutions of Public Officals and other Public Employees, Act No 4483, 2 December 1999; Turkish Criminal Code (Act No 765), 1 March 1926; New Turkish Criminal Code (No 5237), 26 September 2004.

182 For the ‘dynamic and evolutive’, ‘practical and effective’ and ‘living instrument’ approaches see eg Harris D et al. , Harris, O'Boyle & Warbrick: Law of the European Convention on Human Rights (3rd edn, Oxford University Press 2014) 810 , 18; Bates E, The Evolution of the European Convention on Human Rights (Oxford University Press 2010) 320–3.

The authors would like to thank the anonymous reviewer for his/her helpful comments, and acknowledge the benefit of discussions during early thinking about this article with Dr Darren Dinsmore, Lecturer in Law at the University of Kent, but the views expressed in this version are entirely their own.

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