In the aftermath of the failed coup, the 15 July 2016, which lasted a few hours1, the Ankara authorities have proclaimed it state of emergency and, consequently, the Turkish representative gave a verbal note2 to the Council of Europe, announcing the suspension of the European Convention for the Protection of Human Rights and Fundamental Freedoms of the 1950 (called ECHR). A verbal note was also sent to the United Nations regarding exceptions from International Covenant on Civil and Political Rights of the 1966 by the permanent representative of Turkey, the ambassador Y.Halit Çevik3.
The formal verbal note of the Turkish government was preceded by widely reported expectations4, also fueled by a press release from the Council of Europe5, which was starting the suspension of the ECHR - presumably as a whole - and, very interestingly, followed by a communication from the European Council of 25 in July which seems to minimize the gravity of the derogation.
The exception is permitted by the decree of the 15 article of the ECHR6, which does not give carte blanche to emergency measures7, as well as from the 4 article of the International Covenant on Civil and Political Rights8, when a State is faced with a situation of public emergency that endangers the internal security of the State and officially applies the state of emergency. A military coup, which did not continue, first faction, could qualify as a serious and sufficient situation that can be addressed through the declaration of a state of emergency in the process of restoration of normality9.
Suppose the Turkish decision to suspend or withdraw from some of the ECHR's norms becomes concrete, given its admissibility, we will try, then, to understand the limits that a State is faced with according to the norms of human rights when it is lawfully derogated. Indeed, the Secretary General of the Council of Europe Thorbjørn Jagland, paraphrasing these constraints in a statement10, taking note of having received the verbal note from Turkey, wanted to highlight how the European Court of Human Rights was clear in reiterating that any derogation must be proportionate to the situation and in no circumstance can a State derogate from some fundamental articles, like the 2 article concerning the right to life of every person that is protected by the law and that nobody can be intentionally deprived of life, except in execution of a death sentence pronounced by a court, in the case in which the crime is punished by the law with such penalty; the 3 article concerning the prohibition of torture that no one can be subjected to torture or to inhuman or degrading treatment or punishment; and finally the 7 article nulla poena sine lege, where no one can be convicted of an action or omission which, at the time it was committed, did not constitute a crime according to domestic or international law and, equally, a penalty more serious than that applicable at the time when the crime was committed.
The current text of the article of the ECHR 15 contains some complications, as it requires that the derogation measures are not allowed except to the extent circumscribed according to the needs of the situation and not in contrast with other constraints determined by international law and mention is also made of the prohibition against slavery and absolute easement, that is, binding rights11. The reference of the wording to the needs of the situation is intended to encompass the parameters of necessity and proportionality, as has been elaborated pursuant to Article 4 of the International Covenant on Civil and Political Rights by the Committee on Human Rights in its general observation12.
The list contained in the ECHR and the 1966 Pact, which concern rights that cannot be derogated, in the sense that they are not subject to suspension, are reflected enough in the article 15, paragraph 2 of the Constitution of the Turkish State. Based on this provision of the Turkish Constitutional Charter, it is clear that even in the circumstances referred to in the first paragraph13, the individual right to life, and the integrity of its material and spiritual entity are inviolable, except where death occurs through a legitimate act of war and the execution of death sentences, no one can be forced to reveal their religion, of conscience, thought or opinion, nor be accused of them; crimes and sanctions cannot be retroactive, or anyone can be sentenced up to that time, ascertained with a court sentence.
Much of the immediate attention and concern of the international community has focused on the signals from the regime of Erdogan under which Turkey intends to reinstate the death penalty14. Without having to put aside these concerns, it is necessary to note that the state of emergency, wanted by Erdogan, or the verbal note of the ECHR cannot be used to legally justify the death penalty. There are a number of profound reasons why the death penalty appears completely excluded, at least in legal terms.
First, in the 2004 the already mentioned article 15, paragraph 2, of the Turkish Constitutional Charter15, was amended so that the reference to capital punishment was potentially lawful during the state of emergency was canceled from the provision. Ergo, the death penalty was abolished by the Constitution in order to make the abolition mandatory in the state of emergency.
In secundis, Turkey itself has committed itself, on the international level, to abolish the death penalty both in time of peace and in time of war, through ratification without any reservation of the 6 protocol, concerning the abolition of the death penalty, ratified by Turkey on December 1 of 2003, demonstrating the fact that this abolition in peace time was now part of the principles of the national legal system16, And 13 protocol, concerning the abolition of the death penalty in all the circumstances of the ECHR17, as well as the second optional Protocol of the International Covenant on Civil and Political Rights aimed at abolishing the death penalty18. All these international instruments are clearly not derogable.
In tertiis, the even more drastic measure of referring to the three protocols mentioned above also seems to be excluded, for the reason that none of these cited protocols contains a withdrawal clause. The 6 and 13 protocols are now transfused or have become an integral part of the ECHR and now affect the interpretation of the State's obligations based on the right that cannot be derogated from the right to life of each person that must be guaranteed by law19. Denouncing the ECHR's 6 and 13 Protocols, a response from the Strasbourg Court (the so-called EDU Court) would most likely be activated, which, by accepting the Protocols concerning, precisely, the abolition of the sentence capital, the member states of the Council of Europe have concretely modified the ECHR in the sense that the mandatory articles 2 and 3 on them inhibit the death penalty.
Reference is made to the declaration obiter dictum available in the case Ocalan c. Turkey, Judgment of 12 March 2003 / Appeal No. 46221 / 99, in which the Grand Chamber, in paragraph 163, cites the previous ruling of the Chamber as a sign of approval at a time when Turkey had not yet ratified the two Protocols cited previously20.
On the same point, again, it is worth mentioning that the article 6 of the International Covenant on Civil and Political Rights which concerns, precisely, the right to life, is interpreted as the creation or creation of a mandatory impediment to the introduction of the black capital punishment against states that have abolished it. And like the International Covenant on Civil and Political Rights has no withdrawal clause, there is universal recognition of the position by the Human Rights Committee in the general remarks as a reaction to the alleged denunciation by North Korea of the International Covenant on Civil and Political Rights, that the Pact cannot be denounced21. Consequently, even theprocess procedural to denounce the ECHR as a whole and leaving the Council of Europe would not help; however, Turkey is still bound to the International Covenant on Civil and Political Rights and the second Additional Protocol.
In quartis, as a more pragmatic consideration it is necessary to recall that the articles 15 and 7 of the ECHR, as well as the articles 4 and 15 of the International Covenant on Civil and Political Rights - that would remain standing even if Turkey has suspended the ECHR - and the article 15 of the Turkish Constitution inhibit any retroactive application of criminal law even in the period of the state of emergency. What Turkey is doing, that is to say the introduction of the death penalty, would not justify the application of the death penalty in respect of the conspirators of the failed coup of 15 July 2016.
For all the above, I feel that the risk of the introduction of the death penalty can be considered the priority problem, in which the international community itself should at least pay the greatest attention to the derogations of Turkey, from the treaties concerning the precisely the rights of the human person. What can be expected in Turkey is one tsunami of restrictive measures, which have already been initiated by the president Erdogan, which go beyond what are seen as limitations allowed to human rights and can therefore be justified as exceptions during a state of emergency. They are perhaps to compromise a series of rights contained in the ECHR and in the International Covenant on Civil and Political Rights, which do not fall within the framework of non-derogable rights. The most probable rules that may become the subject of exceptions are: A) The 5 article of the ECHR, concerning the right to liberty and security, and the article 9 of the International Covenant on Civil and Political Rights, in which the government has already announced the extension of detention without charges up to 30 days. It is not unthinkable that one would try to create a security holding category - known as preventive detention - which are not included in the exhaustive list of reasons for detention listed in the 5 article, paragraph 122. The right to a judicial examination of any form of detention - we refer to the article 5, paragraph 4, of the ECHR, according to which every person deprived of liberty by arrest or detention has the right to lodge an appeal to a court, so that decides shortly on the legitimacy of his detention and orders his release if the detention is illegitimate, and article 9, paragraph 4, of International Covenant on Civil and Political Rights, according to which anyone who is deprived of his liberty for arrest or detention has the right to appeal to a court, so that he can decide without delay on the legality of his detention and, if this is unlawful, may order his release - it is understood as mandatory , but that does not exclude the possibility of the application of security detention or adjustment in the manner of review of the court. B) The 6 article of the ECHR deals with the right to have a fair trial, as well as the article 14 of International Covenant on Civil and Political Rights which emphasizes the need for every individual to have a fair and public hearing before a competent, independent and impartial tribunal. In this case, Turkey can introduce changes in the functioning of its judicial system, even limiting access to justice, with the introduction of special courts or even military courts. The presumption of innocence, equality of arms, the requirement that criminal convictions can only be issued by a court, and the various dimensions of the legality requirement, including the inhibition of the retroactive application of criminal law, must therefore remain protected as a mandatory dimension to the right to a fair trial. C) The 8 article, concerning the right to respect for private life e familiar, as well as the article 10 on the Freedom of expression and the article 11 about the freedom of assembly need association, of the ECHR, as well as the articles 17, 19, 21, 22 and 23 of the International Covenant on Civil and Political Rights, may become the subject of measures that derogate from the requirements imposed on States in normal periods.
We are already witnessing or expecting research and seizure measures, interception of communications, the blackout of some social media, the closure or control of some television and radio stations, the dissolution of some associations or bans to demonstrate or public meetings , until the closure of the military academies. For the functioning of civil society and for Turkish democracy, these derogations can lead to strong concern. I believe that it is essential to remain aware of the fact that the derogation from the treaties concerning the rights of the human person does not entail the suspension of the fundamental rights of the human being, but merely an additional level of restrictions, justified as necessary by the details of the emergency that sets in the form of threat the existence of the nation and always bound by the needs of the situation and the requirement of proportionality.
Consider the article 2 of the Protocol n.4 to the ECHR which recognizes certain rights and freedoms, such as that of free movement23, as well as the article 12 of International Covenant on Civil and Political Rights, which states that every individual who is legally in the territory of a state has the right to freedom of movement and freedom of choice of residence in that territory. These last two articles of two different treaties indicate that it would probably be another competitor for measures derogating from the rights of the person. The measures in question may include curfew, the introduction of checkpoints, the domicile assigned as an alternative to custodial security. The forced displacement of groups of individuals, as happens, for example, with the Kurds, would be considered as a mandatory red line that the state of emergency does not justify crossing.
It is problematic but not without precedent that the content of the verbal note of the Turkish government is devoid of details relating to the present exceptions contained in the ECHR. It does not even mention what the exempted articles should be. On the contrary, it is simply stated that the measures adopted may involve the exception to the constraints pursuant to the ECHR. A purist might conclude that she has not even suspended herself from the ECHR, but has only expressed the desire to do so later. Unfortunately, the phrase quoted in the verbal note of Turkey is word for word a copy and paste of the statement contained in a verbal note24 of the permanent representative of France to the United Nations, deposited with the General Secretariat the 24 November 2015, after the terrorist attacks in Paris the 13 November 2015. Above all, the French verbal note pursuant to International Covenant on Civil and Political Rights it was more appropriate, at least as indicated which articles must be subject to exceptions.
Some of these measures, prescribed by the decrees of 14 and 18 November 2015 and by the law 20 November of the same year25, may request an exemption from the constraints of International Covenant on Civil and Political Rights with reference to the 9 articles26, 1227 e 1728.
As I mentioned earlier, a novelty appeared on 25 in July this year, when the Turkish authorities presented to the Council of Europe a second verbal note that partially provides the legitimacy accepted by all parties in support of the decision on the state of emergency adopted by the Turkish president Erdogan and in part offers a restrictive interpretation of what the exceptions of the ECHR may entail. The declaration also includes the following guarantee: as stated in the ECHR, an exemption does not constitute a suspension of rights, but leads to certain limitations on the exercise of certain rights to the extent strictly required by particular requirements29.
In the coming years, it will be a daunting task for the Turkish courts and the EDU Court, as well as the Human Rights Commission, to examine and assess whether Turkey's various deviations from the ECHR and International Covenant on Civil and Political Rights may be deemed by the government itself to be exceptions during the period of the state of emergency, whether they are lawful or constitute violations of international law.
1 M. GUIDI, The failed coup helps Erdogan become sultan, posted the 18 July 2016, on the following page: http://www.affarinternazionali.it/articolo.asp?ID=3548; M. CASTELLANETA, Turkey: this is how Erdogan seperates human rights, 27 July 2016, in http://www.marinacastellaneta.it/blog/turchia-cosi-erdogan-seppellisce-i-diritti-umani-unione-europea-inerte.html.
2 The note verbale is on the institutional website of the Council of Europe JJ8187C Tr./005-191 of 22 July 2016, in https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2929966&SecMode=1&DocId=2380676&Usage=2.
3 The note verbale can be consulted on https://treaties.un.org/doc/Publication/CN/2016/CN.580.2016-Eng.pdf.
4 A. WITHNALL, Turkey suspends European Convention on Human Rights in wake of attempted coup, 21 July 2016, in, http://www.independent.co.uk/news/world/europe/turkey-coup-attempt-human-rights-president-erdogan-purge-turkish-military-a7148166.html.
5 Press release of the European Council of 21 July 2016 (DC132 (2016)), available at the following site: https://wcd.coe.int/ViewDoc.jsp?p=&id=2436775&Site=DC&BackColorInternet=F5CA75&BackColorIntranet=F5CA75&BackColorLogged=A9BACE&direct=true.
6 1. In the event of a war or in the event of any other public danger threatening the life of the nation, each High Contracting Party may take measures notwithstanding the obligations provided for by this Convention, to the extent that the situation requires it and on condition that such measures do not conflict with other obligations under international law. 2. The previous provision does not authorize any derogation from Article 2, except in the case of death caused by legitimate acts of war, and to articles 3, 4 § 1 and 7. 3. Any High Contracting Party exercising such a right of derogation shall keep the Secretary General of the Council of Europe informed in full about the measures taken and the reasons which led to them. He must also inform the Secretary General of the Council of Europe of the date on which these measures cease to be in force and in which the provisions of the Convention regain full application.
7 E. SUMMARY, Erdoğan to the test of human rights, posted the 26 July 2016, on the following page: http://www.affarinternazionali.it/articolo.asp?ID=3560.
8 1. In the event of exceptional public danger, which threatens the existence of the nation and is proclaimed by an official act, the States parties to the present Covenant may take measures which derogate from the obligations imposed by the present Pact, to the extent that the situation strictly requires it, and provided that such measures are not incompatible with other obligations imposed on them by international law and do not involve discrimination based solely on race, color, sex, language, religion or social origin. 2. The aforementioned provision does not authorize any derogation from the articles 6, 7, 8 (par. 1e 2), 11, 15, 16 and 18. 3. Any State party to this Agreement that makes use of the right of derogation must immediately inform, through the Secretary-General of the United Nations, the other States Parties to this Covenant of both the provisions to which it has derogated and the reasons which gave rise to the derogation. A new communication must be made, by the same means, on the date on which the derogation is terminated.
9 For a careful analysis see L. ZAGATO, The exception for reasons of Emergency in international human rights lawin DEP, 2006. p.137 ss .; A. CUCCO, The suspension of the European Convention on Human Rights by Turkey: a legal choice, at the legal level?, posted the 1 August 2016, in: http://www.difesaonline.it/evidenza/interviste/la-sospensione-della-convenzione-europea-dei-diritti-delluomo-da-parte-della.
10 Statement by the Secretary General Thorbjørn Jagland of the Council of Europe available on the following page: http://www.coe.int/en/web/portal/-/turkey-protecting-democracy-and-human-rights.
11 No one can be held in slavery or servitude (article 4, paragraph 1 of the ECHR).
12 General remark about the article 4 of the International Covenant on Civil and Political Rights of the 31 August 2001, CCPR / C / 21 / Rev.1 / Add.11, available on the following page of the High Commission for Refugees (you see).
13 In times of war, mobilization, martial law, or state of emergency, the exercise of fundamental rights and freedoms may be partially or totally suspended, or measures may be taken, to the extent required by the needs of the situation, to derogate the guarantees enshrined in the Constitution, provided that the obligations of international law have not been violated (article 15, paragraph 1, of the Turkish Constitution).
14 The death penalty was completely abolished in Turkey thanks to a complex of constitutional and legislative amendments. The changes made to the 7 May 2004 Constitution have deleted any reference to the death penalty in it. Furthermore, with the legal amendments approved the 21 July 2004, the death penalty was abolished for all circumstances.
15 Even in the circumstances referred to in the first paragraph, the individual right to life, and the integrity of its material and spiritual entity are inviolable, except where death occurs through a legitimate act of war and the execution of death sentences, no one can be forced to reveal his religion, conscience, thought or opinion, nor be accused because of them; crimes and sanctions cannot be retroactive, or anyone can be sentenced up to that time, ascertained with a court sentence (article 15, paragraph 2, of the Turkish Constitution).
16 C. RUSSIAN, PM QUAINI, The European Convention on Human Rights and the jurisprudence of the Court of Strasbourg. Giuffrè, Milan, 2006, p.115 ss .;
17 The 1 July 2003 enters into force Protocol No. 13 to the European Convention on Human Rights which bans the death penalty in all circumstances, including crimes committed in time of war or imminent danger of war.
18 F. CHERUBINI, Asylum from the Geneva Convention to European Union law, Cacucci, Bari, 2012, p.115 ss .; U. VILLANI, From the Universal Declaration to the European Convention on Human Rights, Cacucci, Bari, 2016.
19 The 2 article, paragraph 1, of the ECHR states that "(...)No one may be intentionally deprived of life, except in execution of a death sentence pronounced by a court, in the event that the offense is punishable by law with such penalty".
20 The utmost feasibility of considérer que franche tendance traduit à présent an agreement des etats contractants pour abroger, ou du moins modifier, the deuxième phrase de l'article 2 § 1 les Etats contractants ont déjà signé the Protocole no 6 et que quarante et un d'entre eux l'ont ratifié. On peut se demander s'il est nécessire the ratification of the Protocole no 6 par les trois Etats membres restants pour concludes que exception relative à la peine de mort prévue à the article 2 § 1 a été substantiellement modifiée. Eu gard à la convergence de tous ces éléments, on peut to say that la peine de mort en temps de paix en est venue à être conseérée comme une forme de sanction inacceptable, (...) here n'est plus autorisée par article 2. " (paragraph 163 of the sentence searchable in: http://www.echr.coe.int/Documents/Reports_Recueil_2005-IV.pdf). As well as the 12 Judgment of March 2003 / Appeal n.46221 / 99, in http://www.dirittiuomo.it/sites/default/files/ocalanitaliano.pdf. See P. MAZZESCHI, The case Ocalan - A) Profiles of international lawin Criminal Law and Process, 1999, p.364 ss.
21 Observations générales adoptées par le comite des droits de l'homme au titre du paragraphe 4 de l'article 40 du pacte international relatif aux droits civils et politiquesin CCPR / C / 21 / Rev.1 / Add.8 / Rev.1, 8 December 1997.
22 Every person has the right to freedom and security. No one can be deprived of liberty, except in the following cases and in the manner prescribed by law: (a) if he is regularly detained following a conviction by a competent court; (b) if he is in a regular state of arrest or detention for violation of a provision issued, in accordance with the law, by a court or for the purpose of guaranteeing the execution of an obligation prescribed by law; (c) if he has been arrested or detained for translation before the competent judicial authority, when there are plausible reasons to suspect that he has committed a crime or there are reasonable grounds for believing that it is necessary to prevent him from committing a crime or giving himself up to escape after having committed it; (d) whether it concerns the regular detention of a minor decided to supervise his education or his regular detention in order to translate it before the competent authority; (e) if it concerns the regular detention of a person susceptible to propagate a contagious disease, of an alienated person, of an alcoholic, of an addict or of a vagabond; (f) if it is a person's regular arrest or detention to prevent her from illegally entering the territory, or a person against whom an expulsion or extradition proceeding is in progress.
23 1. Anyone who is regularly in the territory of a State has the right to move freely around it and to freely establish his residence there. 2. Everyone is free to leave any country, including their own. 3. The exercise of these rights cannot be subject to restrictions other than those provided for by law and which constitute, in a democratic society, measures necessary for national security, public security, the maintenance of public order, the prevention of infringements penalties, the protection of health or morals or the protection of the rights and freedoms of others. 4. The rights recognized in paragraph 1 can also, in certain specific areas, be subject to restrictions provided by law and justified by the public interest in a democratic society.
24 The verbal note of the French representation at the United Nations is available on the following page: http://www.un.org/Docs/journal/En/lateste.pdf.
25 G. PACCIONE, RFrench constitutional case in compliance with international law regarding the use of force against ISIS, 20 / 11 / 2015, in http://formiche.net/2015/11/20/riforma-costituzionale-francese-nel-rispetto-del-diritto-internazionale-circa-luso-della-forza-contro-lisis/.
26 1. Everyone has the right to the freedom and security of his person. No one can be arbitrarily arrested or detained. No one can be deprived of his liberty, except for the reasons and according to the procedure provided for by the law. 2. Anyone arrested must be informed, at the time of his arrest, of the reasons for the arrest, and must as soon as possible be informed of any accusation against him. 3. Anyone arrested or detained on the basis of a criminal charge must be translated as soon as possible before a judge or other authority competent by law to exercise judicial functions, and has the right to be tried within a reasonable time, or released. The detention of persons awaiting trial must not be the rule, but their release may be subject to guarantees that ensure the appearance of the accused both for the purposes of the trial, in any other phase of the process, and possibly for the purposes of execution of the sentence. 4. Anyone deprived of their liberty by arrest or detention is entitled to have recourse to a court, so that they can decide without delay on the legality of their detention and, if this is unlawful, may order his release. 5. Anyone who has been a victim of illegal arrest or detention is entitled to compensation.
27 1. Every individual who is legally in the territory of a State has the right to freedom of movement and freedom of choice of residence in that territory. 2. Everyone is free to leave any country, including their own. 3. The aforementioned rights cannot be subjected to any restriction, except those that are provided for by law, are necessary to protect national security, public order, public health or morality, or the rights of others, and are compatible with the other rights recognized by the present Covenant. 4. No one can be arbitrarily deprived of the right to enter their own country.
28 1. No one may be subjected to arbitrary or illegitimate interference with his or her private life, family, home or correspondence, nor to illegitimate offenses to his or her honor and reputation. 2. Everyone has the right to be protected by law against such interference or offenses.
29 Notification of communication, available both in French and in English on the page: https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2930083&SecMode=1&DocId=2380796&Usage=2; See ME SALERNO, Into the fight against terrorism, does Article 15 of the ECHR?, in http://www.giurisprudenzapenale.com/wp-content/uploads/2016/04/Scarica-il-contributo.pdf, 2016; B. BAGLAYAN, Turkey state of emergency and derogations from ECHR after failed coup d'état, 08 August 2016, in http://leidenlawblog.nl/articles/turkey-declares-state-of-emergency-and-derogates-from-echr-after-failed-cou?platform=hootsuite.
(photo: Turkish presidency)
