No rule of law?

Something out of the ordinary, something very strange, something seriously concerning happened at the second section of the European Court of Human Rights on 23 November 2021.

It all started reasonably normal

The chamber, formed of seven judges of the Second Section, delivered a judgment on the merits of the case of Turan and others v. Turkey. It came back six to one, as seems now to be routine in Turkish cases, with Judge Kuris dissenting.

That this judgement is probably the most out-of-the-ordinary judgment of a chamber of the European Court of Human Rights ever is not immediately apparent reading the judgment from the beginning.

It starts with a summary of the facts. We learn that the case concerns the arrest and pre-trial detention of then sitting judges or prosecutors at various levels of the Turkish judiciary. This, one may think, could be the extraordinary aspect of this case. It is not. This is not the first case before the Court that addresses the detention of domestic judges from Turkey or elsewhere.

The judgment goes on to indicate that there are precisely 427 judges and prosecutors as applicants in this case.  This could also be the extra-ordinary part. It is not. The European Court of Human Rights has dealt with cases involving a large number of applicants. There is Tagayeva v. Russia, the so-called Beslan case, brought by 409 Russian nationals in a series of applications that arrived at the Court between 2007 and 2011. Then there is the pilot judgment procedure, allowing the court to pick a case from a large group of applicants manifesting systemic problems in repetitive cases.

We learn that the domestic proceedings against all these judges and prosecutors concerned their suspected membership of the Fetullahist Terrorist Organisation, an organisation which the Turkish authorities assess to have organised and carried out the attempted coup in July 2016. Is the extraordinary aspect of the case thus the designation of judges as members of a terrorist organisations during a state of emergency? It is not. The European Court has already addressed this in the cases of Alparslan Altan v. Turkey and  Baş v. Turkey.

In Turan and others, similar to the two cases above, the Court held that the safeguards against arbitrary arrest and detention were not met in the treatment of either ordinary judges and prosecutors (paras 79-92) or judges who were members of apex courts, namely the Court of Cassation and the Supreme Administrivia Court (paras 93-96). Key to the reasoning of the Court was the rejection of the government’s argument that these judges and prosecutors were caught fragrante delicto solely on the basis of their alleged organisational ties with the organisation behind the coup attempt. Significantly, the Court held that the way in which this concept has been employed by domestic courts, including the Turkish Constitutional Court, did not meet the quality of law requirement under Article 5 of the European Convention on Human Rights. It further found it troubling that this concept was stretched to a point in cases that concern the arrest and detention of judges and prosecutors, a protected group under the Convention due to their special role as the ‘guarantor of justice’ in society (para 82).

Given that the Court has dealt with cases involving judges and prosecutors, involving large numbers of applicants and involving cases where judges have been arrested, detained and dismissed for being a member of a terrorist organisation in Turkey, what then makes this case so especially out of the ordinary?

Human rights applications as threats to the survival of the human rights court

To find this out, one must patiently await the final paragraph of the substantive part of the judgment. In response to the applicants’ allegations of many other violations of the Convention under Article 5, the Court states:

‘The Court has found above that the applicants’ detention was not prescribed by law, which runs counter to the fundamental principle of the rule of law and to the purpose of Article 5 to protect every individual from arbitrariness. Having regard to the significance and implications of this finding, which goes to the heart of the protection afforded under Article 5 and entails a violation of one of the core rights guaranteed by the Convention, and to the accumulation of thousands of similar applications on its docket concerning detentions in the aftermath of the attempted coup d’état in Turkey, which puts a considerable strain on its limited resources, the Court considers – as a matter of judicial policy – that it is justified in these compelling circumstances to dispense with the separate examination of the admissibility and merits of each remaining complaint raised by each individual applicant under Article 5. The Court also points out in this connection that an individualised examination of the remaining complaints brought by each applicant would significantly delay the processing of these cases, without a commensurate benefit to the applicants or contribution to the development of the case-law. It notes furthermore that it has already addressed the legal issues raised by these complaints for the most part (see, in particular, Selahattin Demirtaş (no 2), Alparslan Altan and Baş, all cited above; Atilla Taş v. Turkey, no. 72/17, 19 January 2021). It is precisely within this exceptional context that the Court, guided by the overriding interest to ensure the long-term effectiveness of the Convention system, which is under threat by the constantly growing inflow of applications (see, mutatis mutandis, Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al, §§ 111, 119 et seq., 157 and 210, 12 October 2017), decides not to examine the applicants’ remaining complaints under Article 5.”

With this one single paragraph the chamber majority of six judges (two concurring, one partly concurring) – as a matter of judicial policy – throws the right to individual petition -arguably the corner stone of the entire system – out of the window. Just like that.

This may at first seem a dramatic statement. After all the right to individual petition has had countless modifications and recalibrations, through a string of amendments and court policies in the last decades due to the structural case load problem of the Court. These include the ‘significant disadvantage’ criterion for admissibility under Protocol 14 and the reduction of the 6 month rule to 4 months under Protocol 15. The Court has also introduced a pilot judgment procedure, through which it picks one meritorious case from a large group of cases to indicate systemic problems, and sends the rest of the cases to the national authorities to remedy. In Burmych, also referred to in para 98, the Grand Chamber of the European Court of Human Rights took the pilot judgment procedure to a new level, striking out a large number of cases of its docket because they concern the same problem identified by the Court in a previous pilot judgment.  The Court held that these large groups of cases were “to be dealt with in the framework of the general measures of execution of the [relevant, unimplemented] pilot judgment” (point 4 of the operative part). This controversial decision was of the Grand Chamber, the highest formation of the Court addressing central questions of the interpretation of the Convention. It also came with seven dissents, which held that this decision took the Court from the realm of legal interpretation of the Convention to the territory of legal policy with the predominant purpose of managing the Court’s case law, a purpose that cannot guide the interpretation of the Convention.

The second section majority decision takes us further to an unchartered territory of legal policy. It is not a pilot judgment. It is also not a second Burmych. The majority decision instead is a refusal to examine either the admissibility or the merits of a wide range of complaints from the judges and prosecutors, all the while hinting that these, and complaints that may be coming from thousands of others, are likely to be meritorious under the Convention. The majority decision does so for the following reasons: a) delay processing of these cases may cause in delivering judgments, without b) ‘commensurate benefits’ to applicants and c) contribution to the ‘development of the case law’.

All of these three points in paragraph 98 are not only unprecedented, but also unfortunately worded.

For the first time in its history, the Court uses the excuse for delays that may be caused in handling applications as a reason not to examine the very same applications. Judge Kuris provides the main take-away of this stance in his dissenting opinion – ‘To be frank: if a regime decides to go rogue, it should do it in a big way. And if responsibility can be escaped by “doing it big”, why not give it a try?’

For the first time in its history, the Court held that otherwise meritorious cases have no ‘commensurate benefits’ to the applicants. In doing so, it seeks to assert a unique ‘significant advantage’ doctrine of its own.  Finally, the majority decision ignores the Court’s own well-established practice, clearly outlined in its own priority policy, that the development of the case law is only one of many considerations for why chambers handle cases.

What is the survival of the Court for?

If we need to have an urgent conversation about the very survival of the Court and its legal policy to ensure that survival, a chamber judgment is not the place to have it. If we need to have an urgent conversation about the very survival of the Court, telling thousands of applicants across Europe to do their part by not sending applications to the court is not how one should start that conversation either.