Turkey’s contradictions with its own constitution

14 February، 2022

Turkish president Recep Tayyip Erdogan on Feb. 6 said that “Turkey will not respect the Council of Europe if it does not respect Turkish courts.” He said this upon the decision adopted by the Ministerial Committee of the Council of Europe to initiate the “infringement proceeding” for Turkey.

Erdogan’s statement contradicts the provisions of Turkey’s constitution, which provides in its article 90 that “international agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”

Turkey has duly ratified the European Convention on Human Rights and has recognized the jurisdiction of the European Court of Human Rights (ECtHR). Therefore, it has to abide by the latter’s rulings.

The Ministerial Committee of the Council of Europe on Feb. 2 decided to formally initiate the “infringement proceeding” for Turkey because of its refusal to implement a verdict of the ECtHR regarding Osman Kavala, a Turkish businessman and philanthropist.

It was known beforehand that if Turkey were to refuse the implementation of the verdict, the next step would be to ask the ECtHR to determine whether Turkey has failed to meet its obligation to implement the court’s verdict.

The previous decision adopted on Dec. 2 last year by the Ministerial Committee was the last reminder that the infringement proceeding was going to be initiated if Kavala were not released. This decision was adopted with 35 countries — out of a total of 47 — voting in favor of the decision. Three countries, including Turkey, had voted against the decision. Seven countries had abstained and two countries — Poland and Bosnia Herzegovina — have not participated in the voting.

There has been a slight change in the pattern of the votes since the previous voting. Moldova, which had abstained in the previous voting, changed side this time and joined 35 countries that voted against Turkey, increasing the number to 36. Three countries that voted in favor — Azerbaijan, Hungary and Turkey — remained unchanged. Poland and Bosnia-Herzegovina did not again participate in the vote.

The distribution of the votes indicates that all 27 EU member countries, with the exception of three — Hungary, Poland and Romania — voted against Turkey. This subtlety is important, because an at least 15 country rejection is required for a decision to be rejected. Therefore, any country’s changing side matters and the rejection of a decision to initiate a sanction against Turkey becomes less likely.

If the ECtHR reaches the conclusion that Turkey has failed to meet its obligation to implement the court’s verdict, the Ministerial Committee of the Council of Europe will decide the nature of sanction that it will use against Ankara.

There is an irony here, because Erdogan recited a poem in 1997 at a party rally and was found guilty of incitement to violence and religious hatred and put in jail. At that time, Erdogan applied to the ECtHR to get this sentence repealed. In other words, he regarded the ECtHR as a legitimate place to redress the injustice done against him. Now he says that he will not abide by the rulings of the same ECtHR.

There is a contradiction between president Erdogan’s stated commitment to continue Turkey’s path toward the EU and his attitude regarding the implementation of the ECtHR verdicts.

Yasar Yakis

On the other hand, the dispute between Turkey and the Council of Europe looks like a dialogue of the deaf. Turkey says that the ECtHR’s verdict on Kavala has been duly implemented, but there is now a new case against him and he is being kept in jail because of this second case.

Kavala has been held in prison for more than four years without being convicted. The question remaining now is how will justice be restored if he is not found guilty eventually?

Robert Spano, chairman of the ECtHR, said that he did not want to comment on the Kavala case “but the general rule was that the governments are bound to implement the verdicts of the courts whose jurisdiction they have recognized.”

Despite this opinion of its chairman, the ECtHR has no police force to execute the decisions. The only instrument that it holds is political pressure. The ultimate pressure that it can exercise is the suspension of a member country’s voting rights and eventual exclusion from the council. No member country has so far been excluded. On one occasion Azerbaijan was faced with a comparable case, but the procedure against that country was discontinued when Baku decided to release the person it was keeping in jail.

There is a contradiction between president Erdogan’s stated commitment to continue Turkey’s path toward the EU and his attitude regarding the implementation of the ECtHR verdicts.