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Final Report Summary - DEMTUREUROPE (Democratization and Transnational Human Rights Regimes: A Case Study of Turkey and the European Court of Human Rights)

State of the art
The ECtHR’s jurisprudence on the Kurdish conflict has had a transformative effect on the European Convention of Human Rights (ECHR/Convention) system. The European Court of Human Rights (ECtHR/ Court) wrote much of the bedrock of its jurisprudence through its rulings on Turkey, particularly those on gross human rights abuses in the Kurdish region. Yet, Turkey has been not much more than a footnote in the scholarship. In studies theorizing the ECtHR’s effectiveness in human rights protection and role in transitions, and in scholarship on reforming the ECHR system, Turkey has largely been overlooked or at best acknowledged as an outlier. At the heart of this oversight lies a false dichotomy between old and new member states of the Council of Europe (CoE). Accordingly, the old ones are established democracies with rule of law traditions which need minor adjustments to their legal systems, whereas newcomers are post-communist nations with fragile democracies and rule of law systems in need of structural guidance. Scholars of constitutionalism mark the demarcation between these two groups with two dates, arguing that the old members drafted democratic constitutions after the Second World War whereas the new ones followed suit after the fall of the Berlin Wall. While there have been notable, albeit very few, acknowledgments of the Turkish exception, no attempt has been made to account for it other than Turkey’s compliance failure. The scholarship has been generous in depicting the ECtHR as an agent of democratic transition and human rights protection, excusing its inability to influence hard cases with compliance failures. Similarly, although Kurdish human rights lawyers have won landmark judgments which shaped the Court’s jurisprudence, research on Kurdish legal mobilization is surprisingly dearth. Few studies are temporally limited to the ‘Golden Age’ of Kurdish legal mobilization, materially restricted to the role of transnational actors in this phenomenon, methodologically biased in their exclusive focus on judgments, and unduly positive on the ECtHR’s receptivity to Kurdish claims.

Filling the empirical gap
The gap in the scholarship is striking since Turkey was among the drafters of the ECHR and ratified it in 1954, has been subject to the ECtHR’s jurisdiction since 1990 and has been a repeat offender of gross human rights abuses; in Cyprus in the 1970s, across Turkey during the military regime (1980-1983), in the Kurdish region in the 1990s. The old/new member states dichotomy does not capture the case of Turkey which, unlike the post-communist states, has been in the ECHR system from the beginning and where every constitution adopted has been authoritarian, not democratic. Kurdish legal mobilization occurred in an authoritarian domestic context and has faced fundamentally different challenges than its counterparts in democratic countries of Europe.

Research questions
In authoritarian regimes where the state is engaged in violence against a minority group in the context of an ethno-political conflict and claiming legitimacy from counter-terrorism, what are the possibilities and limitations for consequential engagement by a transnational human rights court? The project seeks to answer this question by taking the ECtHR’s involvement in Turkey’s Kurdish conflict as a case study, with the goal of producing findings that would be relevant for the engagement of regional human rights courts in similar domestic settings. To provide a coherent analysis of the ways in which an authoritarian regime subject to ECtHR oversight has handled the rights claims arising from an ethno-political conflict, the project has also asked a secondary question: How has the ECtHR responded to the Kurds’ linguistic and political rights claims in light of the ECHR’s individualistic approach to human rights protection?

Methodology:
This project mainly draws on the judicial impact and legal mobilization literatures with a view to provide a top-down and a bottom-up approach to explaining the interaction between the ECtHR and Turkey. Adopting an interdisciplinary perspective and process-tracing approach, it discusses how Turkey’s recognition of the right of individual petition, its efforts to accede to the EU and the post-enlargement reforms of the ECtHR have affected and been affected by Kurdish legal mobilization. It then looks into the output of this mobilization by laying out the evolution of the ECtHR’s jurisprudence on state violence and the infringement of Kurdish political and cultural rights and the impact of this case law in Turkey’s politico-legal regime. The project has focused on the period between 1987 (Turkey’s recognition of the right of individual petition) and 2012 (Turkey’s recognition of the right of constitutional complaint), addressing recent developments in an Epilogue. The project has combined legal analysis with qualitative social science research. The analysis of ECtHR rulings, Turkey’s laws and policies, the Committee of Ministers (CoM) resolutions, the documents of political branches of the CoE and the EU, and the progress reports of the European Commission was supplemented by empirical data gathered through in-depth interviews with Kurdish human rights lawyers and British legal experts, human rights NGOs in Turkey, Turkish government representatives, ECtHR officials and judges, members of the European Parliament, and officials of the EU and the CoE.

Summary of research results
Contrary to claims in the scholarship that the Court has shied away from minimalist rulings on the Kurdish conflict, the ECtHR’s jurisprudence has had problematic aspects from the beginning. While the Court has documented gross abuses in the Kurdish region, in refusing to identify the Turkish state’s policy of violence, assimilation and centralization against the Kurds, it adopted a depoliticized and non-contextual approach which did not grant any consideration to the history and politics of the Kurdish conflict. While somewhat flexible in its admissibility rules, the Court adopted an unduly legalistic approach in its substantive review by imposing victims of state violence by an authoritarian regime the same evidentiary standards as victims of human rights violations in countries governed by the rule of law and granted Turkey the same margin of appreciation as in governments of democratic countries. The ECtHR approached human rights abuses against the Kurds as aberrations rather than structural elements of a historically grounded, ideological and discriminatory state policy. The Court’s post-enlargement docket crisis rendered it too lenient towards Turkey’s eagerness and readiness to cooperate to enhance its chances for EU accession and to tarnish its reputation. Had the ECtHR engaged in a more robust oversight of human rights abuses in the Kurdish region in the 1990s and not approved cosmetic remedies developed by Turkey to execute the ECtHR judgments, and of course had the EU not prematurely given Turkey accession status, there could have been a genuine reform process in Turkey. Instead, under the disguise of ‘subsidiarity’, the ECtHR referred thousands of cases back to Turkey, though there were clear signs that the Turkish judiciary was unwilling to hold security officials accountable for their crimes. In terms of Kurdish political and linguistic rights, the ECtHR’s effectiveness has also been questionable. While issuing precedent-setting judgments regarding Kurdish political parties, in critical moments, the ECtHR has played a democracy-constraining role by upholding Europe’s highest electoral threshold which has systematically excluded Kurdish political parties from the Turkish Parliament. The results demonstrate that there is a need for the Court to deliver individual justice to victims of gross human rights abuses in authoritarian countries and not leave any margin of appreciation in its oversight of civil and political rights in settings where governments representing the majority abuse their numerical superiority for systematically denying minorities their fundamental rights under the ECHR.

Reported by

HERTIE SCHOOL OF GOVERNANCE GGMBH
Germany
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