The suspension of the European Convention on Human Rights by Turkey: legal choice, legal?

(To Andrea Cucco)
01/08/16

In the aftermath of the failed coup of 15 last July, and to the internal (and external) repercussions of it (including the arrest of several soldiers, magistrates and so on), they aroused surprise and concern, especially in the Western world, the words of the deputy minister of the Turkish government, Numan Kurtulmus, according to which his country, in order to better face the state of emergency that it is going through (already formally declared for the next three months), will simultaneously with the suspension of the European Convention of human rights 'man.

On this point, we interviewed our Marco Valerio Verni, to better understand the real possibilities of such a choice and the possible consequences.

Lawyer Verni, can Turkey actually suspend the application of the European Convention on Human Rights?

Yes, but under certain conditions: this possibility, in fact, is provided for by the art. 15 of the same Convention, according to which "in the event of war or in the event of another public danger threatening the life of the nation, each High Contracting Party may take measures in derogation of the obligations provided for by the Convention, to the extent that the situation requires it and on condition that such measures are not in conflict with other obligations deriving from international law".

A closer look, if, on the one hand, it appears clear that, on the Turkish side, there would be no violation of the normative data, on the other, it would still have to adapt - at least in theory - to the limits set by this institute precisely from the aforementioned article , which, in paragraph 2, prohibits the possibility of derogation with respect to some fundamental rights: that is, that to life (art.2), that to the prohibition of torture and inhuman or degrading treatment (art. 3), that of the prohibition of slavery (art. 4), the one according to which nobody can be judged for an action or an omission which, at the moment in which it was committed, did not constitute a crime according to domestic or international law (nothing poena sine lege: art. 7).

Without considering the additional limits set in reference to articles of single protocols: (in primis) the right not to be tried twice (prohibition of ne bis in idem) or the prohibition of the death penalty.

So the picture seems all in all, at least on a legal level, rather guarantee even in the event that Turkey (and unfortunately the events of these days seem to go in this direction) should really put into practice what, so far, it has announced only at words. In this regard: should we expect formal communication?

We do not know if, in reality, a "de facto" suspension of the Convention is already in place: the images transmitted to us by the media do not bode well in this regard. Certainly, referring to the normative data, the paragraph 3 of the aforementioned article provides, from the procedural point of view, that the State that decides to exercise the right of derogation (and therefore, in our case, Turkey) must inform in the most complete way the Secretary General of the Council of Europe on the measures taken and on the reasons which determined them, as well as on the date on which they cease to be in force, with the consequent "coming into force" of the Convention.

If this were not enough, as a further guarantee of the strict application of the derogation, there is the possibility for the European Court of Human Rights to check whether there is proportionality between the appeal to the same and the causes that led to the single state to do so.

Leaving aside for a moment the juridical aspect, it must be said that in Turkey it is not the first time that the systematic substitution of prosecutors, governors and - above all - high officers of the Armed Forces, as well as the limitation of the freedom of printing.

On this point it would be necessary to open a separate chapter, also to better understand the role that the Armed Forces have always had in this country, but certainly, today, the possible suspension of the Convention on Human Rights would not help the already lame path of entry of the aforementioned State in the European Union, especially if accompanied by the reintroduction of the death penalty, also announced by its president Erdogan. And, as mentioned, also prohibited by the same Convention mentioned above and, rightly, already stigmatized by the High Representative of the Union for Foreign Affairs and Security Policy, Federica Mogherini.

(photo: presidency of the republic of Turkey)