With its new decision on Abdullah Öcalan’s prison conditions and right to communication, the Committee of Ministers once again called on Turkey to fulfill its international obligations. However, compared to previous positions, this decision has caused disappointment in legal circles.
The Association of Lawyers for Freedom (ÖHD) co-chair, Serhat Çakmak, spoke to ANF about the Committee’s stance from both a legal and political perspective.
Çakmak emphasized that the decision marked a step backwards compared to previous years: “When evaluating this decision, we must consider it alongside the decision from last September. In that one, the Committee raised the stakes and stated that Turkey had to make a legal amendment within a year. In other words, the responsibility was placed directly on Parliament, not on any other institution. That decision made the issue one that had to be placed on the agenda in every period.
This September, however, the basic expectation was that the bar would be raised higher. A more effective interim resolution was expected. Frankly, this decision fell far short of legal expectations. From a legal logic standpoint, stepping back after previously moving forward created a contradiction in itself. Once you go from one to two, you’re supposed to move from two to three—not back again. Especially when we’re talking about a decision that has stood for eleven years without being implemented, this decision carries a regressive quality from a legal standpoint.”
“Political balance was considered”
Çakmak argued that the Council of Europe and its Committee of Ministers, responsible for implementing decisions, have long acted with political balances in mind, and that this approach undermines the seriousness of the legal mechanism: “We have always said that the Council, the ECtHR, and the Committee as the implementing body constantly function as mechanisms trying to maintain a certain political balance. This decision, too, confirms the claim we’ve long made. Given the current Middle East politics and EU-Turkey relations, a balance was being maintained so as not to sever ties over these political considerations.
This decision was entirely shaped by that balance and, in one sense, was built on trust in the peace process. A commission was formed in Turkey in the context of domestic peace, but this was not something that the Council of Europe or the Committee of Ministers could recognize as a judicial authority. The responsibility here is placed directly on the state. The respondent state cannot deflect responsibility to its internal institutions. The Committee’s counterpart is the Republic of Turkey—not its parliamentary commission.
This decision reflects a stance of playing for time and relying on contextual balance. In this respect, it must be acknowledged that a serious deficiency has emerged regarding the credibility of the Council’s legal mechanism.”
“Regrettable in terms of the independence of law”
Çakmak recalled that European institutions had taken stronger stances in previous decisions regarding Turkey, and stressed that the flexibility shown in the case of Abdullah Öcalan constituted a legal step backwards: “In the cases of Demirtaş and Kavala, interim decisions were adopted that harsher sanctions would be applied against Turkey for non-implementation. But to act flexibly and step back in a case that is over eleven years old and still not implemented is, in our view, not the correct legal approach.
For years, we have defended the independence of the judiciary and the supremacy of constitutional and contractual law when evaluating both national and international judicial mechanisms. But now, as a lawyer, I criticize the fact that even the EU and Council of Europe mechanisms, which have themselves criticized Turkey’s judiciary and expressed serious concerns about its impartiality, are not upholding judicial independence either.
It must also be said that we have reached a very regrettable point in terms of the independence of law.”