North Africa, West Asia

Cashing in on the human rights regime

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When all a politician needs to do is to pay the price of his/her misdemeanor and move on—which does not even come out of his/her own pocket but rather that of the taxpayer’s—would any politician prefer to take the blow personally?

Oguz Alyanak
2 October 2013

There’s a pattern in Turkey that I have been trying to make sense of for a while. It goes something like this: Turkey commits an infringement of the human rights law (right to free trial, right to assembly, right to life, etc.…). Even before the case is brought to the judiciary, both parties to the argument (defenders of the perpetrator and of the victim) agree that there will be international consequences of the Turkish state’s breach of law. This is where they agree. They disagree, however, in terms of the registers they use to back up their statements. For the pro-perpetrators (who, of course, do not agree that such an act is a perpetration in the first place, while admitting that there will be consequences), the consequences become yet another form of punishment that the country will have to face. The punishment coming from the outside (such as the European Court of Human Rights) signifies the outsider’s (western, i.e. European) bias towards Turkey. For those who are pro-victim, the consequences are the expected outcome of their government’s misdemeanor. That the punishment is coming from the outside is quite natural because the judiciary in their homeland does not work.

Both parties, moreover, bring up their frustration with notions deemed universal, or notions found instrumental in promoting a “common understanding”, such as democracy. For the former, the rhetoric on democracy provides a point of intervention for the European powers in Turkey’s internal affairs. For the latter, the rhetoric on democracy provides a point of intervention for the governing Justice and Development Party in officializing its hegemonic presence in Turkey. While the two parties carry on the discussion, the actual trial takes place. Turkey faces the international court (i.e. the ECtHR) and as expected, it is found in violation of human rights. Then follows the fine—ranging anywhere from a couple of thousand Euros to a couple of million. With Turkey convicted, the media starts to talk about the case and the verdict. Was the punishment fair? Was it exemplary? Was it biased? And then, as if nothing happened, there comes the next human rights violation, which brings the same debates, the same registers, the same camps, the same justifications and biases… Within this cycle, nothing seems to have changed.

ECHR at 60

September 3, 2013 marked the sixtieth anniversary of the European Convention on Human Rights. Drafted in 1950 and entered into force in 1953, the Convention is a statement in defense of democracy and fundamental freedoms. 60 years ago, it was the remedy for troubled European minds, which were traumatized by the atrocities of a war that left behind a continent in ruins. Furthermore, the Convention, with inspiration drawn from the Universal Declaration of Human Rights, was an attempt to construct a “common understanding” in Europe around values deemed central to human existence. These values would triumph over a shameful past, and prevent human lives from crumbling under the tyranny of the powerful ever again.

60 years later, today, in a Europe that has become the hotbed of public protests against increasingly repressive forms of governance, it is hard to tell whether the promise of a common understanding still stands. In fact, looking at the track record of some of the signatories to the Convention, it is debatable whether an institutionalized form of human rights does anything other than legitimize the infringement of the very law it is aimed to protect. By that I mean the following: When a government is brought into court, and found in violation of the Convention and/or its protocols, it is sentenced with a fine. The victim is expected to find solace in the fine while the government is expected to benefit from the judgment, which points to the shortcomings in the perpetrating state’s constitution and asks for transformation of the legislative framework. However, the judgment does not necessarily play a deterrent role because, simply put, the ECHR does not have enforcement or sanctioning powers. As a supranational organization, states are expected to act within a “common understanding” by following the decision reached by the court and reforming their constitutions accordingly. By becoming signatories to the Convention, this is an assurance they provide. On the contrary, as the Turkish case shows, the fine all to often becomes a price that the state is willing to pay for further violation of human rights law.

“A fine is a price”

The idea behind this argument rests on an interesting experiment by professors of behavioral and neuro economics, Uri Gneezy and Aldo Rustichini. In brief, their study tests the effect of punishment (fines) as a tool of deterrence. Contrary to the expectation that the introduction of a fine would lower the rate of misdemeanor (in their case, parents picking up their kids late from day-care centers), the two researchers find that the fine leads to an increase in misdemeanor. The introduction of the fine leads to more parents picking up their kids late from the day-care centers. Rather than providing a barrier, the fine becomes a “price to pay” for the misdemeanor—increasing the likelihood and legitimizing future misconduct. Misdemeanor, in short, becomes a “service” that can be bought when needed.  

When we look at Turkey’s interaction with the ECHR, a similar pattern emerges. Having ratified the Convention in 1954, Turkey holds the worst record in the ECHR.  Between the years 1959 and 2012, Turkey topped the list of human rights violations committed (2521 violations out of 2870 total judgments), followed by Italy (1687/2229) and Russia (1262/1346). More than half of these violations involve Article 6, which is on the right to fair trial. That in itself is telling in that the individuals who exhaust options offered by the Turkish judiciary often end up having to turn to international law as the legal field of last resort. In other words, many cases go to Strasbourg simply because they do not receive proper attention in Turkish courts.

For a country regularly convicted of similar violations, the common-sensical argument may be that a process of learning would eventually take place. Instead, Turkey’s caseload in the Court continues to increase. And with the Gezi protests, which have been the focus of attention of the recent two-day Committee of Ministers of the Council of Europe meeting in Strasbourg, one would expect cases against Turkey to continue to increase exponentially. Even as the Gezi protests were taking place, Turkey was brought to the court a number of times for its mishandling of previous public protests. In mid-July of 2013, the Turkish police were found guilty for their disproportionate use of force in 2006 and Turkey was convicted under Article 3 involving “inhuman or degrading treatment or punishment”. In brief, the victim in this case (Abdullah Yasa and others v. Turkey) was injured after a tear gas grenade fired by the police hit him in the face. The canister was fired at him directly.  Also in July, the ECHR came up with yet another decision on a case (Izci v. Turkey) where Turkey was convicted of violating Articles 3 and 11. In this case, the demonstrator, who was attending the Women’s Day demonstration in Istanbul in 2006, was beaten up by the police, which left her in a semi-unconscious state and led to serious injuries. In a press release issued following the judgment, the court urged Turkey “to adopt new measures to prevent police from using disproportionate violence and unnecessary and excessive tear gas during peaceful demonstrations”. According to the Court, the problem had a “systemic aspect”, thereby necessitating Turkey implement the necessary legislative measures as indicated under Article 46 of the Convention.

Why care about the Convention?

In the aftermath of the two-day meeting in Strasbourg, the Committee, which is in charge of the supervision of the execution of judgments by the ECtHR, asked Turkey to revisit its legislative framework in dealing with popular protests. It was also requested of the Turkish government to begin the legal proceedings in penalizing those members of the police who have used excessive force in suppressing the protests. But why should the Turkish government listen to the Committee or abide by ECHR’s judgments, especially when within the borders of the country, its ministers can create a mirage that is profitable enough to win votes? Both during and after the protests, we have witnessed in many accounts the massaging of an image that contradicts and even confutes the degree of violence many of us experienced in fright via social media or lived through in actively participating in the protests. Protestors may be shot at by policemen and killed. But the public would rather be informed that such was a murder without a perpetrator. If the existence of the perpetrator cannot be denied, then s/he must be exculpated under self-defense. Injuries or deaths are transformed into self-inflicted acts, or unfortunate accidents. Protestors would not become victims of plastic bullets piercing the eye, or gas capsules crashing the skull. They would instead slip and fall from a roof.

Understandably, the issue here is more complex than the argument provided can cover. For example, even though the court lacks teeth, not caring about the Convention has its consequences. Article 46 regarding the “binding force and execution of judgments” states that the contracting parties to the Convention “undertake to abide by the final judgment of the court”, and in cases that the state is found in violation of abiding by the judgment, the ECtHR can refer the case to the Council of Ministers for further examination. When a case reaches that level, alarm bells are already ringing, especially when the country in question is a potential candidate of the European Union. However, as more doubt is cast onto Turkey’s motivation for membership, ECtHR judgments lose their primary purpose.  The argument was once that Turkey has to work closely with supranational organizations such as the ECtHR in order to implement the necessary legislative reforms, which would take the country a step closer to the EU. However, joining the EU is no longing the motivating force for the Turkish government. As put in words by Turkey’s chief EU negotiator, “Turkey will probably never join the European Union because of prejudicial attitudes by the bloc’s existing members.”

In a recent piece, a prominent Turkish journalist, Sedat Ergin provided a critical analysis of the Turkish Prime Minister’s speech at the International Ombudsman seminar. At the seminar, the Prime Minister asserted, “in Turkey, the state is no longer one that patronizes the citizen, a despotic and condescending state. It is a state that is serving the citizen.” Ergin’s response was that “the violation rulings that are continuing at the ECHR show that such statements from the prime minister are only nice echoes for the ear.” Although the critique is well grounded, it is also based on a presupposition that I attempt to challenge here. What if the fine is really the price? Why should anyone expect the Prime Minister to be bothered? Behavioral economists seem to have a point here. When all a politician needs to do is to pay the price of his/her misdemeanors and move on—which does not even come out of his/her own pocket but rather that of the taxpayer’s—would any politician prefer to take the blow personally? As far as I can remember, none in Turkey have done so far. And none will probably choose to do so in the foreseeable future.

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