Introduction

Fate has indeed dealt an interesting hand to the Kurds. Upon the dissolution of the Ottoman Empire, the Kurds, a distinct cultural and linguistic minority, were guaranteed a state of their own per the Treaty of Sevres.[1] In the end, while dozens of independent nation-states were realized among the Arab population alone, the Kurds today remain the largest ethnic group in the world without their own state. Situated within the borders of modern Turkey, Syria, Iraq, and Iran, “Kurdistan” holds the dubious distinction of being under the jurisdiction of some of the world’s grossest human rights violators.[2] Countless movements for political, economic and social rights, as well as autonomy and independence movements have been waged in the wake of this colonial failure.

The largest portion of Kurdistan, and the portion that will be emphasized for purposes of this paper, lies within the nation-state of Turkey. Making up approximately 30% of Turkey’s land mass and 25% of Turkey’s population, the Kurdish region lies in the eastern provinces of the country and are, to the naked eye, rather distant from the European continent. It is hence equally ironic that by virtue of Kurdistan’s composition within Turkey against its will, most of Kurdistan may soon have the unprecedented opportunity to become part of greater Europe, with all rights and liberties accorded to it.[3] Among the many advantages the European polity offers to the Kurds are the legal checks and balances unavailable in Turkey. This paper will explore one such venue for acquisition of recognition and remedy, the European Court of Human Rights (ECHR). By examining some of the most influential cases brought at the Court by Kurdish plaintiffs, the paper gauges the utility of the court as a long term actor in the realm of Kurdish human rights. Indeed, it must be concluded that the ECHR plays two important roles in the pursuit of Kurdish human rights in Turkey.

First, it serves as an accurate record keeping mechanism of ongoing human rights violations in Kurdistan, and publicizes key events which are often unheard internationally and Europe wide. The ECHR offers a venue and a voice in Europe for Kurds who would otherwise be completely shut out in Turkey proper. Just as important is the Court’s unprecedented ability to provide remedy to plaintiffs who usually have no recourse to Turkey’s domestic law system. This feature results from Turkey’s ambition to be a permanent part of the European community, even as it lags behind in significant areas of human rights and development.

An Overview of Kurds and the Court

As a by-product of its existence as a European Court, only citizens of countries that are signatories of the European Convention on Human Rights (European Convention) have the opportunity to bring suits under its jurisdiction.[4] In addition to only part of Kurdistan being capable of voicing grievances in front of the court, as a court without binding authority over domestic legal systems, the scope of the ECHR is also limited. There is no mechanism as of yet for the ECHR to send a human rights violator to jail, for example. That is to say that those individuals who are found culpable of violations at the ECHR may never be adequately punished for crimes such as murder or torture, and the structural features in any given country that feeds this sort of behavior do not immediately change as they would in a domestic court system. This being said, some structural changes have come about as a result of judgments in front of the ECHR. For example, Turkish authorities have acknowledged that it was the decision in Aksoy v. Turkey[5] which encouraged new legislation changing the amount of time a person can be held in police custody without access to an attorney.

The ECHR’s main punitive capacity results in its ability to assign monetary judgments against violating states. As a result of the numerous judgments against Turkey, the Turkish state (who is defendant to these suits in particular) has been required to pay hefty compensation. In August of 2002, the Turkish government had reported that it had already paid 4 trillion Turkish Lira ($2.5 million) in compensation as a result of the Court’s rulings, a number which has likely grown significantly since that time.[6] These cases have been brought in the areas of Extra-Judicial Killing, Death in Custody, Disappearance, Torture, Destruction of Property, and Freedom of Expression and Association.

Furthermore, the cases brought in front of the Court have served as a reliable written record of longstanding and continuing human rights violations of Kurds in Turkey. This record will play a pivotal role in Turkey’s longstanding reputation in Europe, and most notably, its accession to the EU.

According to many commentators, the work done by Kurdish groups such as the Kurdish Human Rights Project[7] in front of the ECHR has been both groundbreaking in the world of human rights for minorities in Europe, but also groundbreaking in establishing the extent of the ECHR’s influence. In particular, the work of Kurdish groups bringing cases against Turkey, over 300 of them in total, have pioneered the path of private party civil suits in front of the Court. Some of the attorneys who have been involved in these cases have gone on to become authorities on the Courts inner workings, and have published books to this end.[8]

As a result of this single block of applications that can be accurately grouped under “Kurdish Human Rights”, Turkey has become the country with the most human rights violations lodged against it in all of the ECHR’s rolodex.[9] A number of these cases stand out as trend setting and groundbreaking both in the realm of Kurdish human rights in Turkey, and in terms of human rights legislation in Europe generally.

AKSOY v. TURKEY, 1996- Expression, Unlawful Detention and Torture[10]

Ibrahim Aksoy, a Kurdish journalist and parliament member representing the People’s Labor Party (HEP), brought his grievances to the ECHR in 1995 alleging repeated abuse at the hands of Turkish authorities as well as violations to his right of free expression. The case was reviewed first on grounds that the plaintiff endured torture at the hands of Turkish authorities, and was also separately reviewed on grounds of violation of freedom of expression. The plaintiff was ultimately successful on both complaints.[11]

Aksoy was convicted under a Turkish law outlawing the dissemination of separatist propaganda three times. In the first instance, he was arrested and convicted after making a speech at an HEP party rally. In the speech, he announced that the Turkish state’s long time policy of denying the existence of the Kurds and a Kurdish problem led to a large part of the problems the Turkish Republic faced, and that a solution to this problem would benefit both Turkey and the Kurds. In addition, he referred to the Kurds as the “les peuples les plus opprimés de cette société”.[12] The Turkish court ruled that his speech was racist and hateful, a crime punishable by jail time and fine. His second conviction was related to an article he published drawing comparisons between the plight of Kurds in Turkey to Bosnia, implicitly arguing that international intervention would be appropriate. For this, he was convicted of inciting violence. In his third sortie at the Turkish court, he was convicted of separatist propaganda for a party leaflet he wrote regarding possible solutions to Turkey’s economic and social problems, which included recognition of minorities and liberalization.

After reviewing the arguments on both sides and the relevant documents upon which Aksoy had been convicted, the Court held that each of his convictions had been unlawful under Articles 10 and 41 of the European Convention covering freedom of expression and just satisfaction. The Court ruled that Aksoy had acted properly in his capacity as a politician in Turkey on the political stage, stating

“Il a soutenu… que « le problème du peuple kurde est un problème national, il combat pour acquérir ses droits démocratiques qui sont usurpés ». Pour la Cour, il est clair que les propos en question ont la forme d’un discours politique, aussi bien par son contenu que par les termes utilisés”.[13]

They went on to say that “la liberté d’expression constitue l’un des fondements essentiels d’une société démocratique”[14], and since Aksoy wanted to carry on his agenda “dans le respect des règles démocratiques, de manière pacifique et équitable”[15], Turkey’s claims of inciting violence and separatism were unfounded. Due to Ibrahim Aksoy’s abusive and unlawful detention without council or arraignment, as well as his unlawful convictions, he was awarded £57,639 in damages.

As one of the earliest cases involving Turkey and human rights, the Aksoy case was revolutionary in the ECHR’s willingness to criticize Turkey’s state policy directly. The ECHR’s finding liability on grounds of freedom of expression was considered highly contentious. Moreover, the finding of torture due to a combination of abuse in jail and unlawful detention was groundbreaking in its capacity as a pro-plaintiff standard of care. In 1996 when this decision was made, it was the first time a state had been found guilty at the ECHR of torturing an individual. The Court broke new ground in making the decision, to say the least, as it cited no direct precedents. Aksoy remains a strong precedent in the ECHR’s standard of care regarding torture.

AYDIN v. TURKEY, 1997- Rape as Torture [16]

The case of Aydin v. Turkey involves a 17 year old woman of Kurdish origin in Southeastern Turkey who was forcibly removed from her home and taken into custody for questioning regarding her relationship with the outlawed Kurdistan Workers Party, or PKK.[17]

Upon arriving at the police station, Aydin alleges that she was stripped, beaten, tortured, and raped during her questioning. She was eventually released without being charged of any crime. She decided to take her case to the public prosecutor in her region soon after the incident. After being examined by three doctors for purposes of verification of claims (itself an invasive procedure), it was determined that given the widespread bruising and hymen being abrasively torn, she had been raped. The other two doctors concurred. Even given this information, the public prosecutor decided not to pursue the case.[18]

With the help of expatriate Kurdish groups, the plaintiff then decided to bring her case to the ECHR. By the mere success of forcing acceptance of jurisdiction of the case and consent to review by the ECHR, the case was declared a breakthrough by human rights groups who had spent years working with the Court. This was due to the Court’s prior unwillingness to deal with cases of alleged rape due to a lack of a specific rape clause in the European Convention.[19] In the end, the Court accepted the plaintiff’s claim that the treatment she endured amounted to torture.[20]

The ECHR held that, based on facts established by the European Commission, the applicant’s treatment while in Turkish custody constituted torture as defined by Article 3 of the European Convention.[21] In addition, the public prosecutor’s inadequate pursuit of the plaintiff’s claims violated Article 13 which ensures adequate remedy by national authorities. The court claimed that torture was not allowed “in absolute terms”[22], and there were no exceptions to this principle, and even if there were allegations of terrorism, degrading and inhuman torture was not acceptable. The court also noted a nexus between Article 3 violations and Article 13, stressing the importance of national authorities providing a voice to plaintiffs in national courts.

This case decision changed for the first time the status of rape in international law as qualifying separately as torture, as opposed to a mere criminal act. The Court relied on no direct precedent in making this decision. In that sense, it can be seen as revolutionary. As the Turkish government had been accused of commonly using rape as a form of ensuring complacency among Kurdish women, this ruling is highly important. As a result of this judgment, £62,360 in damages were awarded to the plaintiff.[23]

OZGUR GUNDEM v. TURKEY, 2000- Positive Obligation to Protect Freedom of Expression[24]

Another case that involved the freedom of expression of journalists in Turkey, Ozgur Gundem v. Turkey involved the closing of the first Kurdish language newspaper in Diyarbakr. The staff of Ozgur Gundem alleged that they were subject to attacks, arson to their building, and even murder in the course of their journalistic work. The complaint states that even if the Turkish state did not organize the attacks, their complacency amounted to a violation of Articles 10 (freedom of expression) and 14 (anti-prejudice) of the European Convention. They therefore were alleging that apart from allowing the Kurdish newspaper to exist, there was a positive obligation to protect free expression.[25]

While the Court did not find a violation of Article 14, judging that there was no proof and no reason to conclude that Turkish complacency resulted from the Kurdish origin of the journalist, it did find a violation of Article 10. The Court reasoned that the facts suggested the Turkish authority did not take enough adequate investigative and protective measures to protect the newspaper. It said that even if the Turkish state was incapable of protecting the newspaper from attacks at all times, their various disproportionate compulsory measures on the newspaper suggested that they were singled out for abuse. In particular, the newspaper had been summoned and prosecuted numerous times due to “illegal content”.[26]

Under Article 41 of the convention, the plaintiff’s received pecuniary and non-pecuniary damages, as well as legal fees. More importantly however, the Ozgur Gundem decision sends a clear message to the Turkish government that its long-time policy of attributing attacks on non-governmental groups is punishable as a violation itself. Hence, the case places on Turkey for the first time a positive obligation to protect freedom of expression within its borders, or else risk facing suit at the ECHR.

ACAR v. TURKEY, 2003- Challenge to ECHR’s Review Procedure[27]

Acar v. Turkey is a case that marks an important change in the ECHR’s procedure with regard to review of cases. It involves one of the many cases of “disappearance” in Turkey involving Kurdish citizens.

The story involves a Kurdish farmer who was, according to eye witnesses, forcibly taken by two armed men and driven away in broad daylight. According to his brother who pled on his behalf, after turning on in jail weeks later, he was reportedly held in detention and repeatedly being abused without ever being charged. In addition, he was allegedly not receiving much needed medical attention.[28] The applicant claimed violations of numerous Articles of the European Convention.

After the claims were made by the plaintiff, the Turkish government sent a letter to ECHR claiming it would make a payment to the plaintiff and investigate his case and other like cases. As a result, the ECHR under its lax “strike out” standard dismissed the case stating that it was no longer necessary to consider examination of the matter. Considering the case decision inadequate, the plaintiff appealed the decision by the court to the Grand Chamber of the ECHR for review. The lawyers for the Kurdish plaintiff argued that, without admitting guilt as the defendant in a suit, the fundamental rights that have been breached are not remedied. The Grand Chamber agreed, and remanded the case to be reviewed on its merits. The Grand Chamber’s decision raised the standard to a significant degree for cases in which strike out is being considered, and this is likely to be codified in upcoming reforms that the ECHR plans to undertake.[29]

OCALAN v. TURKEY

The case involving Abdullah Ocalan, the former leader of the Kurdistan Workers Party (PKK), is perhaps the most well publicized case involving the Kurds in Turkey. Living in Syria and leading a military campaign against the Turkish government for greater political and economic rights (not independence), Ocalan’s shelter nearly caused a war between Turkey and its neighbor, and the PKK’s uprising led to military rule in the Eastern Provinces that partially lasts to this day.

The case against Ocalan marked a monumental opportunity for the Turkish government to make an example of its most notorious “terrorsist”. In Turkey, the case was viewed as a strictly domestic concern in which the international or European community should play no part. Turkish newspapers reacted angrily to the insistence of the European Commission that the trial should be held publicly and fairly. The Turkish government had spent years building Ocalan up as the man who caused the death of thousands of Turkish civilians (mostly of Kurdish origin) and pressure was on to exact revenge of sorts on the PKK leader. Unsurprisingly, making his first public appearance since his capture days earlier, Ocalan was dazed and visibly shaken, speaking in the Turkish language against the expectations of many international observers. It appeared that partial punishment had already been exacted behind bars. Within months after Ocalan’s capture in Kenya, and blindfolded transport to Turkey, he was convicted and sentenced to death by a Turkish court, allegedly enduring torture and lack of access to counsel along the way.[30]

After his conviction in the Turkish high court, Ocalan’s lawyers lodged a complaint at the ECHR. The official complaint to the Court cited four violations: (1) the death penalty is in violation of the European Convention, (2) there was improper handling of Ocalan’s detention and access to a court, (3) there was a lack of a fair trial, (4) and lack of proper access to counsel.[31] After a frenzied media coverage, and physical altercations inside and outside of the court house, the Court issued its decision. It held that there had been a violation of Article 3 of the European Convention concerning the imposition of the death penalty, a violation of Article 5 §3 and §4 with regards to detention, and violation with regard to Article 6 §1 with regards to a fair trial. In effect, the Turkish government had been vetoed by the ECHR.

While a retrial never took place in the case of Ocalan v. Turkey, several important developments demonstrating the influence of the ECHR over Turkey took place. Firstly, it was precisely due to Europe’s influence and the ECHR’s deliberation of the case that the likelihood of a formal execution was immediately, and greatly, reduced. After the death penalty was given to Ocalan, in fact, the death penalty was abolished in Turkey, largely due to the work of the European community and the ECHR in leading up to its formal ruling.[32] In addition, while refusing to retry Ocalan, Turkey began its nascent reform program in the Kurdish region shortly after the trial. This move was largely seen as a technique to divert attention from the fact that Turkey was not abiding completely by the ECHR’s decision in the Ocalan case, and to placate the European Community. Thus, even if not entirely effective for Ocalan himself, the decision in the Ocalan case can be thought of as an impetus for change in the Kurdish region.

Conclusion

The human rights environment of Kurds in Turkey, while progressing slowly, lags significantly behind that of other ethnic minorities in Europe. As a country that does not even recognize the existence of its Kurdish minority, the ECHR is a “twilight zone” of rights and remedy for the Kurds in Turkey. It is hence no surprise that Kurdish plaintiffs have both lodged more complaints at the Court than any other group, and that they have made significant headway both in terms of Kurdish human rights and mastery of the Court itself. While often times contributing to the development of European legal jurisprudence, Kurdish human rights groups have found the ECHR a useful tool in the long term quest for recognition and remedy in Turkey. Turkey in turn is being pushed in the right direction, albeit slowly, by being under ECHR jurisdiction. In light of slowing EU accession negotiation, the ECHR may be the most important impetus for human rights change in Turkey in the next decade or so, and is currently the only venue Europe has offered the Kurds to directly voice their grievances. In this sense, the ECHR should also be seen as a innovative example for the encouraging Turkey to engage its ethnic minority problem directly, particularly the one involving the Kurds, in EU accession negotiations themselves.

References & Footnotes

1. See the Treaty of Sevres of 1920, Section III Article 64.
2. For purposes of this paper, “Kurdistan” refers to portions of the Middle East that hold at least a plurality Kurdish population. This area is a contiguous and essentially uninterrupted body stretching from Western Iran to Eastern Turkey.
3. The ability of Kurdish citizens in Turkey to bring cases to the European Court of Human Rights is a taste of the “European Rights” that Kurds stand to gain in a European polity. It is an example of the European process that may present Kurds in Turkey with a favorable human rights environment unavailable in other parts of Kurdistan, with Iraq a possible exception.
4. Leach, Philip, Taking a Case to the European Court of Human Rights (Blackstone Press, 2002)
5. This case, involving the Turkish authorities holding a Kurdish journalist in custody without trial for a prolonged period of time, is analyzed below.
7. The Kurdish Human Rights Project (KHRP), based in London, is an organization dedicated to improving the climate of human rights for Kurds everywhere. However, their work has tended to concentrate in Turkey, with significant work done at the ECHR.
8. Philip Leach is one such example. A lawyer on behalf of the Kurdish Human Rights Project, he has become a leading scholar on ECHR jurisprudence.
9. KHRP 2005 Impact Report, khrp.org.
10. IBRAHIM AKSOY c. Turquie, 6 Eur. Ct. H.R. 2260 (1996)
11. ibid, En Fait (section)
12. ibid, Paragraph 14
13. ibid, Paragraph 58. “He held that << the problem of the Kurdish people is a national problem, its purpose is the acquisition of democratic rights that are being usurped >>. For the court, it is clear that the statements in question have the form of political discourse, as much by context as by the specific terms utilized.
14. ibid, Paragraph 39
15. ibid, Paragraph 77, 78. “respecting democratic parameters, of a peaceful and equitable manner”
16. AYDIN V. TURKEY, 25 Eur. Ct. H.R. 251 (1998)
17. ibid, As To The Facts (section)
18. ibid, As To The Facts (section)
19. KHRP 2005 Impact Report, khrp.org.
20. ibid AYDIN V. TURKEY, Paragraphs 80-83.
21. ibid
22. ibid, Paragraph 81
23. ibid, Paragraphs 126-136
24. GUNDEM v. TURKEY, 31 Eur. Ct. H.R 1082 (2001)
25. ibid, As To The Facts (section), The Merits of Applicants Complaints (section)
26. ibid, Paragraphs 74-79, For These Reasons, The Court (holdings section)
27. ACAR AND OTHERS v. TURKEY, Applications nos. 36088/97 and 38417/97
28. ibid, The Facts (section)
29. KHRP 2005 Impact Report
30. Ocalan was captured on February 15, 1999, and convicted on June 29, 1999. He was convicted to death under article 125 of the Turkish Criminal Code. See Media Release for Öcalan v. Turkey (application no. 46221/99), dated 12/3/2003.
31. ibid, Media Release.
32. ibid. The ECHR still ruled that even the imposition of a death penalty, without its implementation, resulted in a violation of the European Convention.

http://www.kurdmedia.com/articles.asp?id=14134

Mr.Ali Ezzatyar has conducted several Middle Eastern research studies at the University of Oxford, as well as the American University of Paris. He is currently a Doctoral candidate in Law at UC Berkeley's Boalt Hall School of Law. The research above was part of Mr. Ali Ezzatyar's presentation at KAYO's First Conference for the Kurdish Youth in North America in Nashville, Tennessee.