Turkey Tribunal: A Citizens’ Tribunal Presided by Judge Tulkens, the Former Vice-President of ECtHR, Adjudicates the Gross Human Rights Violations of Turkey

October 19, 2021
by Mehmet Bozkaya, published on October 19, 2021
Turkey Tribunal: A Citizens’ Tribunal Presided by Judge Tulkens, the Former Vice-President of ECtHR, Adjudicates the Gross Human Rights Violations of Turkey

Turkey Tribunal (Tribunal), a Belgium-based independent civil society organization established by academics, former international judges and lawyers, held a series of hearings in Geneva between 20-24 September 2021. The Tribunal is a citizens’ tribunal designed to serve as a forum to assess the grave human rights violations taking place in Turkey, similar to the Russell Tribunal and the World Tribunal on Iraq. While these hearings exposed details of grievous infringements by Turkey such as torture and enforced disappearances, the Tribunal concluded that these wrongdoings could amount to crimes against humanity. Despite the non-binding character of its conclusions, the findings of the Tribunal are expected to constitute a source of reference for subsequent individual applications before human rights courts and for possible judicial procedures based on those alleged severe crimes. The Tribunal stated its plan to submit its observations and conclusions to the International Criminal Court (ICC) with a view to triggering an investigation against Turkey by virtue of the international wrongful acts that have been imputed to Turkey but perpetrated on the territories of states parties to the Rome Statute.

This project also entails a glimmer of hope for the people of Turkey, where disregard for human rights violations have come to be considered as the new normal, access to justice is severely hindered, independence of judiciary no longer exists and impunity prevails. Thus, this initiative has also served as a platform to uphold human dignity, respect to human rights and solidarity.

Main distinctive features of the Tribunal to note are; highly qualified, experienced and reputable members constituting the panel; its encompassing approach towards the grievances endured by different societal groups in Turkey; the practice that all staff ranging from judges to clerks offering their service pro bono, as an independence and impartiality assuring measure.

Among the members of the panel are former judges of the European Court of Human Rights (ECtHR) including a Vice-President of ECtHR, former members of the Venice Commission, human rights law professors, high-ranked human rights law officials, current Vice-President of the Administrative Court of the Council of Europe and a former judge of the South African Constitutional Court. Thus, the distinguished members of the panel render the Tribunal quite prestigious and their competences could hardly be challenged.

The Tribunal examined the human rights violations endured by various groups in Turkey such as Kurds, Gülenists, LGBTQ+ people, left-wing activists and jurists. In this way, it put on record that members of various fractions in Turkey have become victims of similar systematic ill-treatments like torture and enforced disappearances. Therefore, it can fairly be suggested that its work entails a sufficiently comprehensive and non-exclusionary scrutiny of victimizations.

Purpose and composition of the Tribunal

This initiative is a project developed by Mr. Johan Vande Lanotte, former Deputy Prime Minister of Belgium and a professor of law, to raise awareness about the dire human rights situation in Turkey and to create alternatives for their adjudication considering the extensive impunity atmosphere in Turkey and the inability to seek justice within Turkey. The oppressive practices by the incumbent Turkish government became more visible after the Gezi Park Protests in 2013 and intensified following the 17 and 25 December 2013 graft probes carried out against some prominent members of the Erdoğan government. The government grasped uncontrolled emergency powers and abused this power to persecute its hundreds of thousands of opponents in the wake of the attempted coup of 15 July 2016. In the meantime, the international human rights protection mechanisms failed to account for this unprecedentedly harsh crackdown. Moreover, even international NGOs have not been able to reflect the whole picture in Turkey. Bearing these in mind, the idea of the Tribunal has been put into action choosing a striking and significant slogan: “Because silence is the greatest enemy of fundamental human rights”.

The Turkey Tribunal has three main components: the rapporteurs, the Tribunal (panel of judges), and registry. Rapporteurs are the independent experts who are tasked with preparing reports on the allegations of human rights violations, collecting witness statements and other related information. The Tribunal (panel of judges) is composed of persons of high moral character, impartiality, and integrity; with extensive judicial experience in the human rights field. Registry consists of the registrar and other staff who are responsible for the administration and good order of the Tribunal. Apart from these elements, the Tribunal has five observers who are expected to follow proceedings, scrutinize the compliance with the Rules of Procedure and monitor if the trials are conducted in a fair and free manner. Among the observers are two members of the EU Parliament, the presidents of MEDEL and CERGU and an award-winning journalist. At the end of the sessions, the observers published their statement about the proceedings and the circumstances of the Tribunal.

Mandates and proceedings of the Tribunal

The jurisdiction of the Turkey Tribunal encompasses the issues and the cases that fall within the scope of the European Convention on Human Rights and other Council of Europe and UN human rights conventions ratified by Turkey. The panel also takes the customary international law and the general principles of international law into consideration while discharging their duties. However, the Tribunal does not have a mandate to assess the potential individual criminal responsibility in specific cases.

During the hearings, firstly the reports on specific human rights issues of Turkey were presented by respective rapporteurs and the reports were examined, scrutinized and discussed by the panel of judges, who requested rapporteurs to clarify certain vague issues, missing parts and complex matters. After the discussions on the reports, the witnesses and experts appeared and gave their testimonies regarding the torture and inhuman treatments and other human rights violations that they suffered at the hands of the Turkish government. Following the witness testimonies over each topic, the Turkish government was given an opportunity to depose and present its defense statements. However, despite repeated calls, neither the Turkish government responded to the invitations nor a representative of the Turkish government showed up at the hearings. All sessions of the Tribunal were livestreamed through its website and Youtube.

Expenses incurred during the organization and holding of the Tribunal were paid in entirety through crowdfunding, transparently funded by a multitude of volunteers.

Independence of Judges

Judges are independent lawyers, who are known for their impartiality, integrity and extensive experience in the field of human rights and act independently in performance of their functions. In order not to compromise their independence and impartiality, they avoided any personal contacts and dialogue with other attendees before and after the sessions, attended no meals with other staff of the Tribunal, and received no payment in exchange for the performance of their tasks at the Tribunal. For the same reason, the judges had a separate gate to enter and leave the venue, wherein the hearings were carried out. Lastly, when the judges were entering and exiting the courtroom, other attendees were asked with an announcement to rise as a sign of respect towards them. As representatives of the Institute for Diplomacy and Economy (instituDE), the platform of former Turkish diplomats, we participated in the audience and personally witnessed the abovementioned practices on the site.

Reports

More than six weeks before the sessions of the Tribunals were held, various reports were prepared by human rights academicians, experts and practitioners. At the same time, they were published on the website of the Tribunal and were communicated to the Turkish Permanent Mission to the UN Office at Geneva. Each report consists of international and domestic legal contexts, previous official reports by international authorities pertaining to the report topics, facts and detailed information on the relevant concrete cases and legal assessment and characterization of these cases. There reports focused on specific human rights violations, namely torture, abductions, impunity in Turkey, press freedom in Turkey, judicial independence and access to justice and crimes against humanity that might be committed by Turkey.

Witness Testimonies

During the 5-day hearings of the Tribunal, fifteen victims and witnesses or their legal representatives appeared in the Tribunal and testified on their own grievances or those of the persons they are representing or the specific human rights situation regarding their area of expertise. Those witnesses have varying affiliations in a manner widely reflecting the mosaic of victimized groups in Turkey including Kurds, the Gülen Group, revolutionary socialists, LGBTQ+ people and jurists.

Witness statements included, briefly:

- The hearing on torture: Victims were exposed to various forms of torture such as battery, electric shocks, insults, attempts to rape, threats etc. They were forced to sign pre-written testimonies under torture. The Turkish judicial system ignores torture complaints. Medical workers and forensic medicine institution are not cooperating with victims and attorneys are facing difficulties and discrimination in the performance of their profession.

- The hearing on abductions: Abductees were held in black sites by the Turkish intelligence (MIT), severely tortured, forced to accept certain accusations and/or sign pre-written statements incriminating themselves or were forced to cooperate against a particular group, some persons were subjected to illegal renditions and severely tortured during apprehension, transfer to Turkey and formal detention.

- The hearing on press freedom: Journalists were subjected to oppressive treatments of the government, imprisoned merely for their journalistic activities on the grounds of membership to a terrorist organization, their publications were confiscated, and the government tried to silence them through imprisonment.

- The hearing on impunity: Despite exposure to severe torture and other ill-treatment, the victims’ complaints were simply ignored, bruises and other indications of torture were not mentioned in medical reports in most cases, evidence was tried to be covered up, the judiciary turned a blind eye to lynches, attempts to murder and assaults that were done in front of the eyes of all Turkish public and perpetrators were even acquitted or not prosecuted at all.

- The hearing on independence of judiciary and access to justice: Judges and prosecutors were dismissed based on previously compiled profiling, immediately imprisoned on the day of the coup attempt disregarding constitutional guarantees, accused of being a member of terrorist organization, their indictments were written more than one year after their imprisonment, the judges arresting them were also subjected to pressure and threats, the bogus charges against them were subject to confidentiality order, their 4500 colleagues were dismissed and prosecuted as well, their lawyers were also imprisoned just for performing their profession and their access to evidence were severely restricted or denied.

Reactions of Turkey

As mentioned above, the reports were communicated to Turkey more than six weeks before the commencement of the Tribunal and it was invited to make an intervention to present its responses. However, Turkey preferred to keep silent towards the Tribunal. Nonetheless, on the first day of the Tribunal, through a press release, it was reported that the Turkish diplomatic mission in Geneva tried to exert pressure on suppliers of the Tribunal in order to cancel the event. Furthermore, according to the press release, the Turkish Embassy in Brussels also requested through diplomatic channels that Prof. Lanotte, who is the general coordinator of the Tribunal and who carries the honorary title of Minister of State offered by Belgium, had to be called back urgently. Similarly, Ghent University, where he is a law professor, was also pressured by Turkey. Moreover, in the morning of the first hearing, the website of the Tribunal became the target of massive cyber-attacks and for this reason the website did not respond for a while. Considering the simultaneous attempts by Turkey, one can suggest that the cyber-attack might be conducted under the effective control of Turkey. Interestingly, this reminds us of the large-scale cyber attack that targeted and temporarily disabled the website of ECtHR upon the publication of the judgment on the Demirtaş case.

Considering these attempts to prevent the proceedings of the Tribunal, it can fairly be inferred that the Tribunal’s activities discomforted Turkey and the event addressing the alleged human rights violations in Turkey was tried to be silenced due to the distress.

It is also apparent that Turkish media, which mostly act as the mouthpiece of the incumbent Turkish government, failed to report the proceedings of the Tribunal or they simply tried to undermine the credibility of the Tribunal and its esteemed judges.

Concluding Opinion of the Tribunal

After four days of the hearings, during which the reports were scrutinized and witness testimonies were put on record, the Tribunal, which was mandated to address certain questions on six topics, handed down its concluding opinion. The topics are as follows: Torture; abduction; press freedom; impunity; judicial independence; and whether the acts of the Turkish government amount to crimes against humanity. With regards to these topics, after holding deliberations, the judges of the Tribunal briefly concluded that:

- There is systematic and organized use of torture in Turkey, particularly against people alleged to have links with the Gülen Group or the Kurdish political entities and the conducts of Turkey are not in conformity with its international law obligations to take measures to prevent and to investigate allegations of ill-treatment,

- Abductions are a part of state action towards perceived political opponents and complaints and allegations of abductions are not thoroughly investigated,

- The repression against the press and freedom of expression points to a larger policy of the Turkish government to silence critical voices and limit people’s access to information,

- There has been a persistent and prevailing culture of impunity in Turkey since 1980, which has reached an unprecedented level in recent years, particularly in the aftermath of the attempted coup d’état of 15 July 2016, and this impunity sustains and even fosters the systematic and organized use of torture and enforced disappearances in Turkey,

- Referring to the lack of independence of the judiciary as well as the prevailing culture of impunity, effective access to justice and thus the protection of fundamental human rights in the current state of the judicial system in Turkey is illusory,

- Acts of torture and enforced disappearances are to be considered as part of a widespread and systematic attack against any civilian population and accordingly they could amount to crimes against humanity.

Commentary

What renders the ruling of the Tribunal authoritative and meritorious is the distinguished persons comprising the panel of judges, who have duly discharged their mandates. The existence of three former ECtHR judges, especially the former Vice-President of ECtHR, in the panel renders the ruling of the Tribunal particularly prestigious, significant and valuable. In this regard, former Vice-President of ECtHR François Tulkens, who preferred during her tenure at the ECtHR to embrace what is legally right and ethically just and who prioritized ‘to develop and uphold consistently rights-based constitutional principles, regardless of political considerations’, deserves a particular tribute. For example, in her dissenting opinion in the case of Leyla Şahin, she had been of the view that “the principle of sexual equality can[not] justify prohibiting a woman from following a practice which, in the absence of proof to the contrary, she must be taken to have freely adopted” and “advocating freedom and equality for women cannot mean depriving them of the chance to decide on their future”. On the other hand, the majority of the ECtHR had deemed the headscarf ban at university necessary to protect the rights of others and public order in the Turkish context of that time. Like the former judges of ECtHR at that time, who had been dignifying the margin of appreciation of states parties, the serving judges of the ECtHR today are still reluctant to render full-fledged judgments addressing all dimensions of the human rights issues in the individual applications by the victims of the state of emergency declared after the attempted coup d'etat of July 15 in Turkey, as expounded here, here, here, and here. Hence, the human rights safeguard provided by ECtHR remains to be disappointing and defective. Therefore, the principled and apposite ruling of the Tribunal comprising the former ECtHR judges should be duly appreciated and effectively availed.

The organisation team of the Tribunal has made it public that they are planning to use the reports, motivated concluding opinion and other documents drawn up by the Tribunal in application to the ICC and in triggering the implementation of the Magnitsky Acts regarding the persons involved in the human rights violations in Turkey. This connotes that the activities of the Tribunal have not been finalized with the completion of the hearings. Apparently, it will further its mission by utilizing the conclusions of the Tribunal and by struggling to trigger international criminal investigations. Expectedly, it will also urge the national authorities to take further measures under the Magnitsky Acts against human rights abusers. In this sense, this strategy is highly precious as it will ensure to keep the human rights situation in Turkey on the agenda and will hopefully bring about more awareness thereon at international level. In addition, no matter whether this campaign triggers a concrete international criminal case, the furtherance of this endeavor per se will be meaningful and impactful. In this way, the Tribunal may gain a deterrent power on human rights abusers and discourage them from contradicting Turkey’s commitments stemming from international law.

Last but not least, the findings of the Tribunal that organized and systematic use of torture and enforced disappearances could amount to crimes against humanity is quite remarkable. However, it should be noted that other conducts of Turkey, particularly the arbitrary mass imprisonment should have also been examined within this initiative. As certain Opinions of the UN Working Group on Arbitrary Detention and the recent report of instituDE correctly put, the arbitrary detention practice by Turkey, especially towards the Gülen Group, has a systematic and widespread character and is highly likely to constitute crimes against humanity.

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