A Legal Trap for Freedom of Expression
More than seven years ago, 406 academics and researchers have been permanently dismissed from their positions at Turkish universities for signing a peace petition condemning the military operations by Turkish security forces in areas heavily populated by the Kurdish minority. Today, threats to academic freedoms and freedom of political expression have only intensified and expanded across Europe and beyond. Those expressing solidarity with Palestinians or criticizing police violence on university campuses face threats of suspension, termination, investigation, or funding cuts. Such interferences with free speech and academic freedoms are poised to test the agility and principles not only of domestic legal institutions but also international human rights organizations.
The case of 406 academics and researchers from Turkey raises critical questions about the limitations of international human rights bodies in safeguarding freedom of expression and how their pragmatic considerations might entrench autocratic legal methods of states. In this blog, I demonstrate how the Council of Europe (CoE) contributed to the creation of a judicial trap disguised as a legal remedy. This so-called remedy not only consumed years of the signatory academics’ lives but also distracted from the very crimes and human rights violations their petition sought to address.
What happened?
The Academics for Peace petition, titled “We will not be a party to this crime”, was published on 11 January 2016. It criticized human rights violations committed during the anti-terror operations and associated round-the-clock curfews in the Kurdish regions of the country in 2015 and early 2016. These operations, resulting in gross human rights violations, were carried out shortly after the collapse of a peace process between the Turkish Government and the Kurdistan Workers’ Party (PKK), which had aimed at ending the decades-long conflict between the state and the armed group. The petition called on the authorities to end the “massacres”, “exiles”, “curfews”, and “human rights violations” and to resume the peace negotiations.
The state-controlled media and numerous top government officials, most notably Turkey’s president, were quick to accuse the 2,212 signatories of the petition of supporting terrorism and to call them “traitors”. A range of interventions followed, including disciplinary investigations, criminal prosecutions, arrests, detentions, cancellations of funding, suspensions, and terminations of contracts.
Six months later, in the fallout of the violent military coup attempt of 15 July 2016, the Government’s imposition of a state of emergency became also a pretext to punish signatories of the Academics for Peace petition with permanent dismissal from their posts, despite the fact that the petition itself had absolutely no connection with the military coup attempt.
The Turkish Government adopted thirty-seven state of emergency decree laws throughout the two-year-long state of emergency. Starting from the first decree law published on 1 September 2016, 406 signatory academics, along with around other 130,000 civil servants, found their names listed in the appendices of the decree laws. Those included in the appendices were removed from public office for alleged affiliation with “terrorism” without being informed of the grounds for their dismissal or given an opportunity to respond to the accusations. Moreover, they were unable to appeal their dismissals due to the lack of legal remedies for measures enacted directly by emergency decree laws under Turkish law.
Several additional de jure and de facto sanctions were attached to the removals from public office by emergency decree laws. These included, for instance, a lifelong ban on public employment, encompassing positions at even private universities, cancellation of passports (including those of spouses), the marking of social security records with a stigmatizing code indicating dismissal by emergency decree laws, exclusion from research funding opportunities, and academic publications. Over the years, the material, social, and psychological effects of these sanctions have resulted in various damages that are now irreparable, and in some cases, have cost the health and even lives of some of the signatories and other dismissed civil servants.
The Council of Europe’s contribution
The impossibility to challenge dismissals by emergency decrees was a matter of immediate concern to the CoE, as it led to a massive surge in applications to the European Court of Human Rights (ECtHR). This surge followed what had been a successful reduction of applications from Turkey through the establishment of an individual application procedure to the Turkish Constitutional Court (TCC) in 2012 with support from the CoE.
Confronted with an unprecedented influx, the CoE proposed that Turkey establish a legal remedy allowing Turkish courts to review appeals from those affected by state of emergency measures. The then Secretary General of the CoE suggested to Turkish authorities the creation of an ad hoc commission to review state of emergency measures. The decisions of this commission would then be challenged before the Turkish domestic courts. The Venice Commission also supported this proposal in an opinion, even though it deemed ex post judicial review of dismissals, conducted without individual reasoning, to be “virtually impossible.” The Turkish Government responded to the idea favourably by establishing the State of Emergency Inquiry Commission (“the Commission”) in January 2017. This Commission began to operate in May 2017 and to receive applications in July 2017 (on the Commission, see here, here, and here).
Subsequently, in June 2017, the ECtHR found an application concerning the dismissal of a teacher by emergency decree law inadmissible for non-exhaustion of domestic remedies, citing the establishment of the proposed ad hoc commission. This remedy, however, was not available at the time the applicant had applied to the ECtHR. Nor was it yet operational when the ECtHR made its decision. Although evident that no domestic remedy existed for the applicant to exhaust before seeking recourse to the ECtHR, the ECtHR made an exception to its general principle that the requirement for the exhaustion of domestic remedies should be assessed at the time of application. Following this decision, thousands of other applications related to state of emergency dismissals were struck out by the ECtHR.
The CoE organs have thus framed the problem confronting those dismissed by emergency decree laws as one of an “access to courts.” This framing poses two significant issues. First, by portraying the issue as one that courts could address on an individual basis, the CoE overlooked the broader issues inherent in dismissals by decree laws, legitimizing the use of executive decrees to dismiss civil servants. Second, it assumed the existence of a legal infrastructure capable of swiftly addressing and redressing the injustices experienced by those affected. This assumption ignored the climate of fear among the judiciary, created by the dismissal and arrest of judges and prosecutors in the same period. During the state of emergency, a total of 4,240 judges and prosecutors were dismissed without investigation or right to defence, regardless of any concrete ties to the coup attempt, and 2,200 judges and prosecutors were arrested.
A legal trap
It took more than four years, until the Commission summarily dismissed all applications from signatory academics. It did so in a span of about two months towards the end of 2021, issuing decisions with standardized wording.
The Commission deemed that signing the Academics for Peace petition constituted alignment with the goals and long-term strategies of the PKK and an attempt to sway national and international public opinion in favour of the PKK. Having breached the civil servants’ duty of loyalty to the state, the Commission considered that the signatories had a “connection” to a terrorist organization.
The Commission’s “copy-paste” rejection decisions came two years after a judgment by the TCC, which had debunked all terrorism-related accusations against the signatory academics. While the TCC had found that their criminal prosecution and imprisonment amounted to a violation of freedom of expression, the Commission flagrantly ignored this judgment and asserted that a “connection with terrorist organizations” could be established under administrative law even if not proven under criminal law. Thus, an act recognized by the country’s highest court as an exercise of freedom of expression could still be sanctioned for alleged “terrorist” links.
Five years after their dismissals, these decisions by the Commission finally allowed the signatory academics to access administrative courts, as envisioned by the CoE. Their cases were assigned to nine different administrative courts designated to review the Commission’s decisions. According to the data collected by a voluntary group formed by the signatory academics, from November 2022 to the present, these courts have dismissed the cases of 170 signatories while annulling the Commission’s negative decisions in 168 cases. 49 signatory academics are yet to receive a decision from the administrative courts.
Some designated administrative courts accepted all cases filed by the signatory academics, relying on the aforementioned TCC judgment. Others rejected all cases filed by signatory academics, adopting a similar line of reasoning to that of the Commission. A third group of administrative courts opted to differentiate between signatories by expanding their investigation into the alleged affiliation with terrorist organizations, requesting information from various state institutions on matters ranging from other criminal investigations to social media posts, donations, and memberships in civil society organizations.
Further complicating this legal chaos, administrative appeal court chambers have overturned first instance court decisions to annul the negative decisions of the Commission in 47 cases so far. These reversals meant that some signatories reinstated to their university posts following administrative court decisions have found themselves dismissed a second time and compelled once again to leave their students and teaching programmes.
It is impossible to cover the full extent of the legal chaos surrounding the signatory academics’ cases here. What I want to highlight is that almost eight years after the signatories’ dismissal, the legal remedy established on the recommendation of the CoE has not yielded any final decisions in the domestic sphere. The chaos created by first and second instance administrative courts remains unresolved by the Council of State. Instead, to this day, the signatory academics remain trapped in an unreasonably prolonged judicial process full of uncertainties.
Seven years before the ECtHR
A number of signatory academics had also brought their cases to the ECtHR immediately after their dismissals. Interestingly, the ECtHR has not rejected the applications of 79 of them. These applications, pending before the ECtHR for around seven years, have later formed the basis of Akın v Turkey and 42 others.
The ECtHR communicated this case to the Turkish Government after receiving a new submission from the applicants in December 2020 indicating that the Commission had still not reviewed their applications. The Turkish Government and the applicants submitted their written observations to the ECtHR in January and May 2022, respectively. Since then, despite regular updates provided by the academics’ legal representatives demonstrating the costs and futility of waiting for the domestic legal system to address the issue, the ECtHR has remained silent.
According to the ECtHR’s established case law, “an effective remedy must operate without excessive delay”. Moreover, cases concerning one’s means of subsistence require a particularly “expeditious decision”. However, for the signatories’ case, these principles have had no impact thus far.
The fact that it took five years for the signatory academics only to gain access to the administrative courts underscores the severe burden placed upon them by the duty to exhaust local remedies. In their submissions to the ECtHR, the legal representatives of the signatories reported that it would take at least ten years to reach the TCC, emphasizing the severe damage this delay causes to the private and professional lives of the signatories, as well as its wider chilling effects.
More importantly, their bad faith targeting by state of emergency measures, despite the evident irrelevance of their actions to the coup attempt, should have been sufficient to exempt them from the duty to exhaust the legal remedy established on the CoE’s recommendation in the first place.
As such, the case of the signatories, pending before the ECtHR for around seven years, leaves us with serious questions about the significance and urgency the ECtHR attributes to the protection of freedom of expression and academic freedoms against authoritarian encroachments.
Concluding remarks
“Now the debate revolves around my right to express what I wish to say, rather than discussing the content of my actual words”, says Palestinian scholar Rabea Eghbariah, whose article “Toward Nakba as a Legal Concept” was censored twice by major law journals. One of the saddest outcomes of the targeting of the signatory academics from Turkey, too, has been the overshadowing of the gross human rights violations they sought to highlight with their petition “We will not be a party to this crime”. In the past eight years, signatory academics have instead found themselves overwhelmingly preoccupied with their own persecution.
Moreover, their case, and more broadly the state of emergency dismissals, have been pivotal in entrenching an unprecedented climate of fear within Turkey’s universities, leading to severe self-censorship on politically sensitive topics, most notably on governmental policies concerning the Kurdish issue (see here, here, and here). One of the most striking indicators of this has been the documented silence of Turkish scholars regarding Turkey’s 2019 military intervention in Syria.
By targeting academics, states not only punish them for deviating from their official discourses but also divert attention from their own crimes and human rights violations, or their complicity therein. Having assisted Turkey in creating a legal remedy that continues to ensnare academics in their own predicaments, the CoE has not only left academics’ freedom of expression unprotected but has also contributed to overshadowing the very crimes and human rights violations their petition sought to address.
