Guest post: Turkey, the ECHR and the Death Penalty

Guest post  by Super Cyan:

Erdogan

The ECHR prevents the death penalty whatever the circumstances and leaving is not that simple

Following the failed military coup, the mass detention, sacking of judges and banning of academic travel, Turkey are now in the midst of suspending the European Convention on Human Rights (ECHR). There has been some concern that this measure has taken place to reintroduce the death penalty.

Not only has it been pointed out that Turkey has signed and ratified Protocol 13 (which concerns the abolition of the death penalty in all circumstances) by Matthew Scott (@Barristerblog), but this as pointed out by Steve Peers and Shohib Khan under Article 15 of ECHR (which concerns derogations in times of war and emergency), Article 2 (the right to life) and Article 3 (prohibition of torture) cannot be derogated from.

Add to this is Protocol 6 (which Turkey has signed and ratified)which concerns the abolition of the death penalty, Article 3 of that Protocol maintains that no derogations of this Protocol can be made under Article 15. Interestingly, Article 2 of that same Protocol seemingly allows States to make provisions for the death penalty in respect of acts committed in times of war or imminent threat of war (which is not the situation in Turkey in any event). However, read with Article 3 of Protocol 6, Protocol 13 and Article 15, Article 2 of Protocol 6 would be prohibited in any circumstances.

Suspension not derogation?

Guillaume Champeau has pointed out that Turkey may not be derogating from the Convention, but suspending or denouncing its membership via Article 58 of the Convention. However, to do so would require Turkey to give the Secretary General of the Council of Europe six months notice. If Turkey decides to denounce without the six months notice (because it assumed this is to be done immediately), this is clearly contrary to Article 58 itself. Under Article 8 of the Statute of the Council of Europe the Committee of Ministers can request any Council of Europe member to withdraw under Article 7 for violating Article 3 of the Statute. Article 3 stipulates that every member must:

‘[A]ccept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.’

By not adhering to the six month notification requirement of Article 58, it could well be suggested that Turkey is not accepting of the principles of the rule of law, by acting contrary to it. Then of course there is what has been mentioned above in the aftermath of the coup which many will say is not respecting human rights and fundamental freedoms especially now that spreading exaggerated news could be a crime (putting, not just journalists, but anyone who uses social media under threat).

Regarding Article 7, if Turkey notify the Secretary General by September, withdrawal could take effect at the end of the financial or fiscal year which would be at the end of 2016 (Turkey’s fiscal year is the calendar year). If the notification is given after September the 30th, Turkey would have to wait until the end of 2017. Under Article 58(2), Turkey would still have to respect the Convention up until that point. However, if Turkey does trigger the Committee of Ministers to act under Article 8 to force withdrawal, it is unlikely that Turkey would refuse (because that is the intention right?), and if they did the Committee can unilaterally expel them (which again might be the intention).

Suspension is not unprecedented in the history of the Council of Europe, here are the lists and reasons for suspension:

— Greece, following the installation of the Colonels’ military dictatorship in 1967. Greece withdrew from the organisation in 1969 before the Committee of Ministers voted for its suspension. The country was readmitted to the organisation in 1974 following the fall of the regime.

— Turkey, following the military coup in 1980. In 1984, the country regained its right to vote in the Assembly after democratic elections had taken place.

— Russia was suspended from the Assembly from 2000 to 2001 as a result of its policies on Chechnya.

Conclusions:

Turkey’s future in the Council of Europe is in considerable jeopardy. If Turkey reinstates the death penalty, whether or not they derogate from Article 15, they will be expelled. If Turkey suspends its membership without properly adhering to Article 58, they could be suspended. If Turkey’s post coup reaction is serious enough, they could be suspended or expelled. If Turkey does lose its Council of Europe status, then it is the people of Turkey who will suffer the most because Turkey will be relinquished of all the ECHR obligations (Article 58(3)). Worryingly, it may not be a question of if or could, but when will Turkey be suspended or expelled.

3 thoughts on “Guest post: Turkey, the ECHR and the Death Penalty

  1. In an interesting Twitter conversation about this post, @oguzarikboga pointed out that Turkey’s notification of a derogation has already been sent to the office of the Secretary General of the Council of Europe and has been published on the website of the Council of Europe’s Treaty Office (here)

    He also believed that the death penalty would not be reinstated. Besides Turkey not going to jeopardise its membership of  the Council of Europe, which it regards as an important political platform, he said that the discussion about it should be read in the (understandable) emotional context of what has happened (a bloody coup attempt) and the way in which Turkish domestic politics work, mentioning the different ‘cultural dimension’ and linguistics thereof. He pointed to the statements of President Erdoğan, Prime Minister Yıldırım and senior advisers saying those statements did actually not indicate any willingness to reinstate the death penalty.

    • Thanks for the comment.

      Obviously this was written on the premise of fears (and to address those fears) people had concerning talks of the death penalty (and the rest was a worst case scenario, prepare for the worst and all). Also, regarding the death penalty, I certainly hope it isn’t, but 2016 hasn’t been a year for predictability. And I agree, leaving the Council of Europe would be a political disaster, for any member state and it wouldn’t be in their interests to either leave or be expelled from the club. I understand the emotional context in the wake of such an event, and fair enough if their is a cultural dimension to the language used, but I do believe what is important, more than what the President, Prime Minister and what senior advisers say is what Turkey actually decides to derogate from and the finer details of their State of Emergency law, that may give some indicator as to their intentions.

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