Abstract
This article investigates the influence of the former Secretary General of the Council of Europe (CoE), Thorbjørn Jagland, on the responses of other CoE bodies to the systemic breaches of the core principles of the CoE in the context of two critical events: Russia’s annexation of the Crimea in 2014 and Turkey’s state of emergency that followed the attempted coup in 2016. Specifically, it examines the influence of the Secretary General’s policy preferences on the Parliamentary Assembly of the CoE and the European Court of Human Rights. The article argues that Jagland’s policy preferences in the context of these two events prioritised political expediency to the detriment of the CoE’s normative mission. The article finds that the Secretary General played a crucial role in facilitating the reversal of the sanctions imposed by the Assembly against Russia and the postponement of the processing of Turkey’s post-coup cases by the Court.
1 Introduction
Over the past decade, the Council of Europe (CoE) has been severely tested by the rapid decay of the rule of law and human rights protection among its members.1 The CoE organs’ responses to persistent breaches of the fundamental principles of the organisation have not only shown the limits of the tools and procedures at their disposal, but also a certain measure of cautiousness and tardiness on their part in employing these tools and procedures. The office of the Secretary General (sg) of the CoE, with Thorbjørn Jagland at the helm between October 2009 and September 2019, has been criticised for responding to severe breaches in weak, cautious, and delayed ways.2
Jagland’s decade-long term of office between 2009 and 2019 as the political head of the CoE coincided with the rapid decay of the rule of law and human rights protections and further entrenchment of authoritarian tendencies among the member states. On a rhetorical level, he recurrently addressed these challenges to the rule of law and human rights with reference to the rationale behind the establishment of the European Convention on Human Rights (the Convention or echr) system in the aftermath of the Second World War. He underlined that the echr system was envisaged as a means to protect Europe from what he defined as ‘a resurgence of dangerous populism’ by ‘safeguard[ing] fundamental freedoms and entrench[ing] the rule of law’.3 He emphasised the need to preserve the acquis and legal character of the Convention system so as to enhance the member states’ resilience to ‘populism’.4
It is against this rhetorical backdrop that this article aims to appraise Jagland’s role and share in the weak, cautious, and delayed responses of the CoE organs to the breaches of the core principles of the CoE in relation to two significant member states—Russia and Turkey—in the context of two critical events: the annexation of the Crimea by Russia in 2014, and the state of emergency that followed the attempted coup in Turkey in 2016. These two events present themselves as critical case-studies for at least three reasons: first, Russia’s annexation of the Crimea and Turkey’s state of emergency posed significant challenges to the CoE by testing its limits and capacities to respond to persistent breaches of its core principles—namely, the protection of human rights, rule of law and democracy and, in the case of the Crimea’s annexation, also the principle of sovereignty. Second, they involved two member states, which not only have the highest share of pending cases and violation judgments before the European Court of Human Rights (the Court or ECtHR),5 but they also retain particular importance within the CoE, both for geopolitical reasons and for their significant contributions to the CoE’s budget.6 Third, the data available in relation to these events provide an opportunity to appraise the role of the sg as the head of the CoE in facilitating the production of certain responses and the postponement or the reversal of certain others by other CoE organs. In this vein, this article focuses on the responses of the Parliamentary Assembly of the CoE (pace) to Russia’s annexation of the Crimea and the responses of the ECtHR to Turkey’s sweeping state of emergency measures.7
The argument of this study is that the former SG Jagland’s policy preferences with regard to Russia’s annexation of the Crimea and Turkey’s state of emergency prioritised political expediency at the expense of the CoE’s normative mission as a bastion of the rule of law, democracy, and human rights. Specifically, the interventions of the sg facilitated the production, postponement, or reversal of certain responses of other CoE organs concerning these events, prioritising the policy preferences of Russia and Turkey. The former sg thus conceded to populist authoritarian tendencies to give primacy to politics over pre-established norms, principles, and procedures—notwithstanding the sg’s repeated emphasis on the significance of the preservation of the CoE’s legal acquis vis-à-vis such threats.
The article is organised as follows: Section 2 provides a brief background on the functions of the sg’s office within the CoE’s architecture. Section 3 describes Jagland’s election to this office and how he interpreted his role as the head of the CoE, while section 4 gives a description of the specific features of Jagland’s term of office from 2009 to 2019. Section 5 defines the place and importance of Russia and Turkey within the CoE, as well as the unique challenges that they have posed to the organisation over the past decade. Section 6 examines the pace’s change of its rules of procedure to lift the sanctions against Russia and the sg’s role in this development. Section 7 then focuses on the responses of the ECtHR to the cases against Turkey in the post-coup period and the sg’s coinciding engagements with the issues addressed by the ECtHR.
2 The Secretary General of the Council of Europe
The sg is appointed by the pace, upon recommendation of the Committee of Ministers (cm),8 for a five-year term of office, renewable once.9 Since its establishment in 1949, the CoE has had a total of fourteen sg s.10 The political head of the CoE, the sg, is responsible for the coordination of the CoE bodies,11 the management of the CoE’s work programme and its budget.12 Under Article 37(b) of the Statute of the CoE (the Statute), the sg answers to the cm and provides a ‘secretariat’ and ‘assistance’ to the pace. The sg is assigned to represent and protect the interests of the organisation.13 The Statute, however, is largely silent about the sg’s powers and functions.14
The echr further entrusts the sg with a ‘supervisory function’.15 Article 52 of the echr obliges the states to ‘furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the echr’ when requested by the sg.16 In addition, after the establishment of the Venice Commission (vc) in 1990, the sg has been recognised as one of the organs that can request advisory opinions from the vc.17 Apart from these, the sg has the authority to engage in diplomatic interactions with the governmental agents of the member states and other political actors.18 Acting as ‘the spokesperson’ of the CoE, the sg is able to communicate the views of the Secretariat and the CoE by means of public statements, reports, press releases, letters, and media work.19
It has been noted that, in the early years, both the framers of the Statute and the cm were reluctant to attribute to the sg any significant role beyond secretarial and administrative functions within the organisation.20 However, as the organisation has expanded over time, so have the sg’s political and representative functions.21 Today, the sg is deemed the ‘strong arm’22 and the ‘embodi[ment]’23 of the CoE, having a major role in the shaping of its policies.
3 The Election of Thorbjørn Jagland as Secretary General
Article 2 of the Regulations Concerning the Appointment of the Secretary General, Deputy Secretary General, and Secretary General of the Assembly Having the Rank of Deputy Secretary General sets forth the selection criteria for the candidates for the post of sg as follows:
- a.The recruitment of persons of the highest ability and integrity and suitability for the post to be filled.
- b.The qualifications and experience of persons already employed by the Council of Europe shall be taken into consideration, so that members of the Secretariat may have reasonable prospects of promotion.
- c.The desirability of ensuring an equitable geographical allocation of appointments among nationals of the Member States subject to the overriding interests of efficiency. No office in the Secretariat shall be considered to be the prerogative of any particular Member State.24
In 2006, a report proving to be influential on the cm called on the cm and the pace to reassess these criteria for the sg.25 Underlining the important representative functions of the sg, the report advised the selection of ‘leading political figures’ and, preferably, a former head of state or government.26 Following the report’s call, in 2007, the cm decided to present to the pace the candidates for the post of sg ‘who enjoy a high level of recognition, are well-known among their peers and the people of Europe, and have previously served as Heads of State or Government, or held senior ministerial office or similar status relevant to the post’.27 Later, in 2010, the cm and pace jointly reaffirmed the need to interpret the above-cited criteria of ‘highest ability’ and ‘suitability’ in accordance with this decision.28
In 2009, the cm short-listed two candidates for appointment by the pace—Thorbjørn Jagland (of Norway) and Włodzimierz Cimoszewicz (of Poland), both former prime ministers of their respective countries.29 In line with the 2007 decision, the profiles of the candidates were distinctly different from the sg serving at the time, Terry Davis, a British parliamentarian and member of the pace for twelve years.30 Jagland was elected with 165 to 80 votes.31 Jagland had the requisite profile of a political leader. Before being elected to the office of sg, he held important governmental and parliamentary positions in Norway. He had served as the president of the parliament (2005–2009), Prime Minister (1996–1997), and Minister of Foreign Affairs (2000–2001) of Norway.32 It has also been noted that during his campaign for the post Jagland had already signalled his awareness of the need to retain ‘good relationships’ with the member states. This, too, was seen as a marker that differentiated him from his predecessor, who had experienced tensions with the cm for invoking his powers under Article 52 of the echr in order to launch an inquiry into the rendition flights and illegal detentions.33
The change towards selecting a sg with a high political profile was related to the need to increase the political authority of the CoE, its international recognition, and visibility.34 When Jagland came to office in 2009, he confirmed the rationale behind his selection, by noting: ‘I have been elected with a strong mandate to reinforce the political role, the visibility and the influence of the Council of Europe on the European and international scene’.35 In line with this statement and with the support from the cm, the comprehensive reforms which he subsequently kicked off as the head of the CoE prioritised the re-enforcement of the political role of the organisation; he sought to increase its political profile by delineating its distinct role for the European state of affairs, and restructured the organisation to increase its effectiveness.36
Jagland’s 2014 re-election for another five-year-term in office was unprecedented in the history of CoE,37 but it was deemed necessary both for the completion of the far-reaching reforms he had launched and for responding to the deepening and newly emerging challenges in Europe.38 In 2014, Jagland was short-listed along with Germany’s former Minister of Justice, Sabine Leutheusser-Schnarrenberger,39 known as a fierce critic of Russia’s policies that run counter to the CoE’s core principles.40 In the first round, Jagland was elected by 156 to 93 votes.41
4 The Former Secretary General’s Long Term in Office: A Decade of Reforms and Challenges
Already before Jagland was elected as the sg for the first time in 2009, the CoE was experiencing serious hardships as to its financial and administrative capacities, as well as its focus and relevance. In 2009, prior to Jagland’s election as the sg, the pace had issued warnings concerning a trend towards political expediency on the part of the CoE institutions, to the detriment of the CoE’s core principles.42 In the same period, the ECtHR was confronted with a massive backlog,43 while the CoE was under severe budgetary constraints due to the 2008 economic crisis.44 With the rise of the European Union (EU) as a regional human rights actor, states also began to question the CoE’s relevance, role and specific contribution to the European state of affairs.45 All of these were seen as indicators of a pressing need for an overarching reform of the organisation. Jagland’s election as the sg came about against this backdrop.
Jagland’s ten-year-long term in office between 2009 and 2019 was marked by two sets of crucial and partially entangled developments: first, the overarching reforms of the organisation, most notably the start of the second round of the comprehensive reform process of the echr system, which came to be known as ‘the Interlaken process’, starting in 2010;46 and second, manifold crises and the resulting political shifts that Europe underwent in the 2010s.47
Jagland led the CoE throughout the Interlaken process, which culminated in the adoption of numerous measures that sought to change the functioning of the Convention system,48 as well as the adoption of Protocol Nos 1549 and 16.50 From 2010 to 2018, six high-level conferences were convened to address the problems that jeopardised the long-term efficacy of the echr system, most notably the Court’s backlog problem.51 The conferences and ensuing declarations also provided an opportunity for the member states to express their discontent with the Court and its rulings in a more organised manner.52 Even though the declarations produced at these conferences seemingly did not contain proposals that could radically alter the object and purpose of the system,53 some saw the reform process, notably after the 2012 Brighton Conference, as having given the necessary impetus for a ‘re-balancing’ of the Convention system in favour of national institutions, as a response to the growing political critique of the Court.54 Article 1 of Protocol No 15, which entered into force on 1 August 2021,55 reflects this by way of an insertion of the principle of subsidiarity and the doctrine of margin of appreciation into the preamble of the Convention.
In his contribution to the preparation for the Interlaken Conference, Jagland had repeatedly emphasised the need for stronger application of the principle of subsidiarity.56 He had underlined the significance of the anticipation and solution of the problems with the cooperation of states, and ‘preferably without the need for the Court’s involvement’.57 During Jagland’s tenure, there was a significant decrease in the Court’s backlog: from 160,200 in 201158 to 79,750 in 2016,59 and finally 56,250 in 2018.60 However, this decrease also corresponded to a considerable ‘narrowing down [of] the role of the Court’.61
Jagland’s ten-year-tenure also coincided with perhaps the most challenging times that the CoE members had to face throughout the CoE’s history. On several occasions, Jagland referred to three sources of challenges and the resultant changes that marked the past decade of Europe: ‘economic crisis, terrorism crisis and refugee crisis’.62 Furthermore, from around 2015 onwards, his public statements increasingly addressed what he defined as populism and the challenges emanating from the populist, nationalist, and xenophobic tendencies prevailing in Europe.63 In his foreword to the 2017 State of Democracy, Human Rights and the Rule of Law Report, he defined populists as ‘those who invoke the proclaimed will of “the people” in order to stifle opposition and dismantle checks and balances which stand in their way’.64 This definition primarily pointed to the governments of the member states ‘challenging constitutional constraints and disregarding their international obligations to uphold human rights’.65 Yet, he also referred to other states, which ‘toughen[ed] up their stances on issues such as asylum and law and order’ in line with the nationalist and xenophobic political currents in many parts of Europe.66 As Jagland underlined, in all these cases international organisations, courts, norms, and treaties, including the Convention system, were deemed hurdles in the realisation of the sovereign will of ‘the people’.67 He thus defined a Europe-wide problem as posing an existential threat to the organisation itself.
In both cases, the sg repeatedly offered CoE assistance and engaged actively in an attempt to slow the backsliding through behind-the-scenes persuasion. Early on, the Hungarian and Polish authorities themselves requested the vc’s opinion, only to make cosmetic changes to the relevant legislation and point to those as resulting from the ‘dialogue’. The sg, constrained by the lack of political will among the Member States for more vigorous action, took the cosmetic changes, framed them as a success story in Hungary, and left the task of addressing backsliding to others. Chastened by his experience in Hungary and the meagre results of ‘dialogue’, he disengaged early in the process of backsliding in Poland.71
The only case in which the sg took a normative public stance against a CoE member that went beyond a mere expression of concern or engaging in dialogue and persuasion was the case of Azerbaijan.72 This came about following the Azerbaijani authorities’ refusal to release Ilgar Mammadov, a well-known opposition politician, which was called for by the cm in light of a judgment of the ECtHR finding his detention unlawful and serving political purposes.73 In this case, Jagland availed himself of his powers under Article 52 of the echr to conduct an inquiry into the implementation of the echr in Azerbaijan.74 Although at the very beginning of his tenure Jagland had expressed his intent to use Article 52 powers more actively in priority cases as identified by the Court’s case law, the cm’s supervision of execution, the pace, and other monitoring and cooperation activities,75 the case of Mammadov remained the only time that he conducted an inquiry under Article 52 during his tenure. Furthermore, Jagland also requested the cm to launch the infringement procedure under Article 46(4) against Azerbaijan with regard to this case.76 As for his use of Article 52,77 Jagland explained his request to use Article 46(4) from the cm for the first-ever time by referring to the unacceptability of political prisoners in Europe, even ‘for a single day’.78
Jagland’s engagement with Azerbaijan beyond dialogue and persuasion is an outlier case. He did not use his powers under Article 52 in relation to any other member state, even when he confronted Turkey’s sweeping state of emergency measures or Russia’s annexation of the Crimea, both of which produced numerous political prisoners in Europe for prolonged periods of time.79 Nor did he himself seize the vc with respect to these two countries in the context of these two critical events. Moreover, Jagland did not seek to assist or encourage other CoE bodies to produce outright and strong responses to these events, as discussed in sections 6 and 7 below.
5 Russia, Turkey, and the CoE
Russia and Turkey have long had a conflicted relationship with the CoE, as major violators of the echr and as major contributors to the organisation itself. As is well known, neither Turkey nor Russia were admitted as members to the CoE, due to their human rights credentials. Turkey’s admission to the organisation in 1949 was linked to Cold War prerogatives.80 Russia’s controversial admission in 1996 has been widely interpreted as the outcome of a political calculation based on the benefits of its inclusion and the possible repercussions of its exclusion.81 Even though their acceptance of the echr led to significant legal and political changes in their domestic orders, these developments have fallen short of changing their long-standing authoritarian tendencies.82
Over the past decade, both countries have also presented unique challenges to the normative mission of the CoE. Most notably, Russia’s annexation of the Crimea in 2014 has been a ‘shock’ and has led to cleavages within the organisation as to how to respond to such a flagrant breach of international law and the Statute.83 Furthermore, Russia has been the first, and so far the only member state to institutionalise ‘the idea of constitutional primacy over the echr’.84 In 2015, it introduced a legal mechanism that enables the scrutiny of the ECtHR judgments for compliance with the Russian Constitution. Having applied this mechanism, the Russian Constitutional Court defied the ECtHR’s judgments in Anchugov and Gladkov v Russia85 in 2016 and Yukos v Russia86 in 2017.87
In Turkey, the further entrenchment of an authoritarian mode of governance during the state of emergency following the failed coup attempt in 2016 has broadened the human rights crisis.88 The state of emergency officially remained in place for two years, from 21 July 2016 to 17 July 2018. The state of emergency measures were used to suppress dissent through investigations, prolonged pre-trial detentions, mass purges, and the closure of scores of associations and media outlets.89 These developments triggered a flood of applications to the ECtHR, shortly after a noticeable decrease in the number of applications against Turkey had been achieved as result of the introduction of the individual application procedure to the Turkish Constitutional Court (tcc) in 2012,90 a procedure whose establishment was strongly supported by the CoE, as often underlined by Jagland.91
However, as member states, Russia and Turkey have also held particular importance for the CoE. Alongside the political and symbolic importance attached to Russia’s inclusion in the CoE after the Cold War, Russia and Turkey’s memberships have always been regarded as carrying crucial geostrategic significance. Jagland defined Russia ‘as an extremely important member’ for its ‘strong influence and the rare power to shape events and attitudes across Europe, as well as in other parts of the world’,92 and as a member ‘(e)ssential to the pan-European deal’, for stability and peace in Europe.93 Turkey’s presence in the CoE has also been deemed indispensable for the mutual dependence between Europe and Turkey for various political and economic reasons.94 In this vein, it should also be recalled that the broader reach of the CoE, compared to the EU, extending to non-EU member states of Europe, including Turkey and Russia, has increasingly become crucial for retaining its relevance in the European setting.95
Furthermore, the war in Syria—according to Jagland, an important source for the ‘terrorism’ and ‘refugee crises’ that Europe has experienced over the past decade96—has increased the political stakes attached to the CoE’s relationships with both countries. Jagland underlined Russia’s responsibility (alongside the United States) to find a solution to the war in Syria97 and, thereby, to ensure global stability.98 Having become home to more than three million refugees from Syria, Turkey gained a new significance for Europe in coping with its ‘refugee crisis’. Jagland expressly supported the controversial ‘Turkey/EU deal’ on refugees, in spite of the drastic deterioration in Turkey’s commitment to human rights around the same time.99
Finally, Russia and Turkey are also among the largest financial contributors to the CoE and are thus capable of steering the organisation into a financial crisis by using membership contributions ‘as a tool for political purposes’.100 In response to their strained relationships with the pace, Russia suspended the payment of its membership fee from 2017 to 2019,101 whereas Turkey changed its status to an ordinary contributor in 2017.102 The two states thus caused a financial crisis in the CoE, which had already operated on a limited budget, partly due to the 2008 economic crisis that had hit Europe hard.103
6 The Reversal of the pace’s Sanctions Against Russia
In March 2014, Russia annexed the Crimea.104 In April 2014, the pace adopted a resolution to denounce Russia for its seizure of the Crimea and its involvement in the conflict in eastern Ukraine.105 It found Russia’s actions ‘in clear contradiction with the Statute, in particular, its preamble, and the obligations resulting from Article 3’.106 Article 3 of the Statute stipulates that ‘[e]very member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’. As a result, the pace resolved to suspend the Russian delegation’s voting rights; its right to be represented in the Bureau of the Assembly, the Presidential Committee, and the Standing Committee; and its right to participate in the election observation missions. On 28 January 2015, the pace decided to prolong these sanctions and also suspend several other rights of the Russian delegation.107 As noted by Donald and Speck, this has been the only instance in which the pace appealed to sanctions in the past decade.108 However, this case differed from others in which the breaches of the CoE’s core principles were also at stake, as the use of sanctions in this case was deemed necessary by the delegates to condemn not only serious human rights violations, but also the breach of the sovereignty and territorial integrity of another member state.109
Russia first reacted to these resolutions by not submitting its credentials for ratification from 2016 onwards.110 In 2017, Russia further announced that it would suspend the payment of its membership contributions until the rights of its delegation were ‘fully and unconditionally’ restored.111 In 2018, statements were made by Russian government officials indicating Russia’s intention to leave the CoE if its demands were not met.112 In the meantime, Russia could not take part in the elections of the judges to the ECtHR, the new Commissioner for Human Rights, and several pace Presidents.113 In July 2018, the Russian Foreign Ministry released a statement questioning the legitimacy of the CoE officials in whose elections Russian parliamentarians had not participated.114
In this context, Jagland was noted to be the first and most vocal official within the CoE favouring the removal of sanctions against the Russian delegation without requiring Russia to comply with the resolutions of the pace.115 In 2017, he openly began lobbying for the lifting of sanctions and made visits to European capitals for that purpose.116 For him, the suspension of the voting rights of the Russian delegation was ‘useless and counterproductive, affecting things that one did not want to be affected and affecting bodies in unforeseen ways’.117
Three arguments for the lifting of the sanctions came to the forefront in his statements, two of which were based on the assumption that Russia would otherwise withdraw or would be excluded from the CoE: first, it would deprive the Russian people of the possibility to access the ECtHR, and second, it would cost Europe Russia, which would have severe consequences for Europe’s security and unity. As the CoE was the only place that united Russia with the rest of the European states ‘in a binding judicial way’, noted Jagland, ‘we will see a different Russia. We will have a new dividing line in Europe’.118 The third argument was related to the need to retain the distinct functions of the CoE in the post-Cold War order of Europe. Recalling the work of the osce to assist the United Nations Security Council to protect the peace and security in Eastern Ukraine, Jagland underlined that the CoE’s mandate was different. To protect the rights and freedoms, as its mandate necessitates, the CoE ‘must act independently of any geopolitical, geostrategic or economic interests’ and ‘be present on both sides’.119 He added, ‘pace is currently unable to do this.’120 He therefore called on the cm and the pace to work together on a solution with the aim to ‘keep all members on board’ based on ‘equal obligations—equal rights’.121 According to Jagland, ‘equal obligations—equal rights is the only concept that can keep [the] family together’.122
Finally, following a cm decision,123 on 25 June 2019 the pace derogated from 6.1 (last sentence) and 6.3 of its Rules of Procedure so as to allow Russia to present its credentials at the June session.124 It affirmed the member states’ entitlement to participate on an equal basis in the CoE’s statutory organs and the importance of the participation of all member states in the coming elections of the new sg and judges to the ECtHR. With the same resolution, the pace further decided to change its Rules of Procedure in a way that would ‘fully and unconditionally’ restore the rights of the Russian delegation. Accordingly, it resolved to supplement Rule 10, adding after Rule 10.1.c the following clarification: ‘The members’ rights to vote, to speak and to be represented in the Assembly and its bodies shall not be suspended or withdrawn in the context of a challenge to or reconsideration of credentials’.125 However neutral and objective the Resolution of June 25 (as well as the preparatory work for it and the cm’s decision) sounds, it was obvious that this move was an answer to the demands, or what was widely seen as ‘inappropriate pressure’,126 of the Russian Government.127
Reportedly, the cm’s decision and the efforts of Germany and France were decisive in the pace’s acceptance of the amendment.128 Furthermore, this controversial move by the pace was actively promoted by the CoE’s political head, Jagland, as explained above. According to a statement by the Russian Foreign Ministry, Jagland’s efforts were appreciated by Russia.129 Hence, the process that culminated in the pace’s decision to amend its Rules of Procedure in order to restore the voting rights of the Russian parliamentarians suggests a more complicated picture as to the role and constraints of the sg than what Muižnieks described with regard to Hungary and Poland, as quoted above. First, unlike in the cases of Hungary and Poland, where the lack of political will among the member states is argued to have prevented Jagland from issuing stronger responses, in the case of the pace’s use of sanctions against Russia, Jagland seems to have been involved in the creation and/or organisation of the necessary political will among the member states, which first culminated in the cm’s decision and then in the pace’s resolution. Second, rather than leaving the floor to ‘others’, Jagland’s diplomatic efforts for the lifting of sanctions against Russia meant to deter the pace—the CoE organ that ‘went furthest’ in its response130—from using its sanctions in the face of severe breaches of the Statute, even though it was obvious that such reversal would damage both the pace’s and the CoE’s reputation.131
Lize R Glas rightly posed the question as to whether the pace would have adopted ‘a more principled stance’ had it not been Russia, but another member state with a smaller contribution fee, the non-payment of which would not have created a financial crisis comparable to the one caused by Russia.132 Although the sg (and subsequently also the cm133 and pace134) adopted a rhetoric on ‘equal rights—equal obligations’ in their efforts to find a solution to this crisis, one wonders whether this move was triggered by an incentive for ensuring equality, or whether it was facilitated through the very inequalities among the member states. Nor is it clear what is meant by the ‘equal obligations’ in this formula,135 other than the payment of membership fees, as Russia seems to have not done anything more than paying the sum to reciprocate.
7 Managing the Post-Coup Applications Against Turkey Before the ECtHR
Following the 2016 coup attempt and the state of emergency, thousands of individuals turned to the ECtHR, calling upon it to respond to the authoritarian laws, policies, and practices of post-coup Turkey.136 In response, the ECtHR has remained cautious to produce robust and swift responses, and has received strong criticism for this hesitant attitude.137 So did the responses of the former sg.138 More importantly, the former sg’s diplomatic interactions were considered to be linked to the moves and decisions that slowed down the processing of individual applications by the ECtHR or prevented applicants from reaching it.139
7.1 The Establishment of Turkey’s State of Emergency Inquiry Commission
A large portion of the applications submitted to the ECtHR against Turkey in the post-coup period concerned mass removals from public office affecting more than 130,000 civil servants, for alleged ‘connections to terrorist organisations’ without any due process.140 Attached to these dismissals were severe automatic sanctions, including a life-long ban from any service in the public sector, revocation of passports, and a permanent note on their social security records indicating that their dismissals from public office were related to the state of emergency (in effect, meaning terror-related).141 Applications concerning removal from office were made to the ECtHR without exhausting domestic remedies. This was because there were no remedies available and accessible to those affected by measures taken directly by emergency legislative decrees, as explained below.142
On 8 December 2016, the ECtHR announced its inadmissibility decision of 29 November 2016 in the case of Zihni v Turkey, concerning the dismissal of a teacher by an emergency decree law. The decision was made on the ground that domestic remedies had not yet been exhausted.143 The ECtHR referred to the pending proceedings before administrative courts and the possibility of individual applications to the tcc.144 However, information confirming that these remedies were not available to individuals dismissed by decree laws was already accessible to other CoE bodies when the ECtHR made its decision. The memorandum of the Human Rights Commissioner, published on 7 October 2016, stated that the Ministry of Justice of Turkey had informed him of the non-availability of judicial remedies for individuals dismissed by emergency decree laws.145 The Memorandum communicated by the Turkish Government to the vc on 23 November 2016 also confirmed that individual measures taken by emergency decree laws could be appealed neither before ordinary courts (including administrative courts), nor before the tcc.146
In its opinion adopted on 9–10 December and published on 12 December 2016, the vc underlined ‘the apparent absence of access to justice’ for individuals dismissed by decree laws.147 In the conclusion of its opinion, the vc noted that it ‘support[ed] the proposal made by the Secretary General of the Council of Europe concerning the creation of an independent ad hoc body for the examination of individual cases of dismissals’.148 This information about the sg’s proposal in the vc’s report was viewed as the reason for the ECtHR’s speed to announce its inadmissibility decision in Zihni.149 It is interesting to note here that, in the same opinion, the vc drew attention to the fact that summary decisions to dismiss civil servants by emergency legislative decrees were devoid of individual reasoning. This, in turn, ‘made any meaningful ex post judicial review of such decisions virtually impossible’.150 It is, therefore, unclear what motivated the vc to endorse Jagland’s proposal nonetheless.
In a speech on 24 January 2017, Jagland mentioned that he had proposed the establishment of a ‘national commission’ in his visit to Ankara on 10 November 2016,151 which was finally introduced on 23 January 2017 by the Turkish Government.152 Jagland added: ‘Up until this point, individuals who have been dismissed and organisations which have been closed have had no clarity or certainty about where to complain if they wish to contest a decision against them’.153
The establishment of the ad hoc commission formed the ground for another inadmissibility decision on 6 June 2017 in Köksal v Turkey.154 This new remedy, however, was neither available at the time when the application was made to the ECtHR, nor was it yet functioning when the ECtHR delivered its decision. The ECtHR decided to make an exception to its general principle that the requirement for the exhaustion of domestic remedies should be assessed in reference to the time when the application had been lodged.155 It did not examine the compatibility of the newly established remedy with the recommendations made in the vc’s opinion, or with the standards developed in its own case law, including those concerning ex post facto legal remedies.156
The sequence of events described above suggests that until the establishment of the ad hoc commission proposed by Jagland, the ECtHR overlooked the information confirming the non-availability of domestic remedies to those dismissed by decree laws, even though it was accessible to other CoE bodies or made accessible by them. After the establishment of this commission, it simply overlooked the information, demonstrating its non-conformity with both the vc’s recommendations and its own case law. Commentators considered this to be related to the concerns stemming from the ECtHR’s docket crisis,157 the principle of subsidiarity,158 and the waning support that it receives from the member states.159 It may, however, also be related to the fact that the establishment of this remedy was recommended by the CoE itself. As such, it would be ‘contradictory’ for the ECtHR to dismiss it as ineffective, as indicated by Angelika Nußberger, the former Vice-President of the ECtHR.160
However, beyond dispute is that Jagland’s proposal to the Turkish Government to introduce an ad hoc commission has thus played a crucial role in the postponement of the ECtHR’s handling of the applications of those affected by the state of emergency measures. This proposal has not only disregarded ‘the context and pattern in which the alleged violations took place’ and the Turkish judiciary’s ‘systematic failure to provide effective domestic remedies’ in the post-coup period,161 but, more importantly, it has also effectively led to the CoE’s authorisation of the method by which these summary dismissals were carried out. Nevertheless, Jagland counted the establishment of the ad hoc commission among the examples of the ‘real benefits’ of the CoE’s cooperative engagement with the member states.162 In effect, however, whether the ad hoc commission offered any benefits other than to avoid overloading the ECtHR with the applications by Turkey’s dismissed civil servants is questionable. Soon after the ad hoc commission started its operations, its decisions confirmed the concerns raised at the outset as to its ineffectiveness,163 as well as doubts that its key function was to gain time before the ECtHR had to deal with these applications.164
7.2 Saving the Individual Complaint Mechanism to the tcc
The CoE invested a great deal in the establishment of the individual complaint mechanism to the tcc, which Jagland defined as ‘a source of immense pride’.165 The tcc has functioned as insurance against a further increase of the ECtHR’s docket. In the post-coup period, this function gained more gravity in the face of the flood of applications concerning the state of emergency measures. Nevertheless, the post-coup developments put the reliability of this mechanism at risk. The tcc itself has made crucial contributions to the rule of law crisis in the country.166 Most notably, the tcc dismissed two of its members based on ‘the information from the social circle’ and ‘the common conviction formed by the members of the Constitutional Court’ as to their alleged link to ‘terrorist organisations’.167 The tcc thereby set a strong precedent for the legality of dismissals by emergency decree laws, based on similar accusations and without any due process and sound evidence. Likewise, the tcc refused to review the state of emergency decrees and thus renounced some of its powers in a way that left the potential abuses of state of emergency powers by the executive outside the purview of judicial review.168
Against this backdrop, the tcc’s first rulings concerning the detention of journalists in the aftermath of the coup attempt carried a particular significance beyond Turkey’s domestic legal order. Having been prompted by the ECtHR’s decision to give priority to and communicate eight applications concerning the detention of journalists,169 on 11 January 2018 the tcc found violations of the freedom of expression and personal liberty in the cases of Şahin Alpay170 and Mehmet Hasan Altan.171 Although removing the consequences of these violations required the release of Alpay and Altan, the assize courts rejected to comply with the tcc’s judgments and refused to release them.172
On 15–16 February 2018, Jagland paid another visit to Ankara and reportedly met with the President, Foreign Minister, Justice Minister, Minister for European Affairs, the President of the Turkish Constitutional Court, and the Speaker of the Grand National Assembly of Turkey.173 In a speech he delivered on 16 February 2018 to candidate judges and prosecutors, Jagland pointed to the defiance of the tcc’s judgments by the lower courts and warned against a possible scenario where ‘the effectiveness of the individual right to petition the Constitutional Court would also be questioned’.174 He added, ‘this would be the end of the system we have built together. Of course, we are not there yet. And we will continue to work together to prevent this from happening’.175 Local newspapers reported that Jagland made a similar statement on 12 March 2018 at a meeting with the Foreign Affairs Committee of the European Parliament, where he is argued to have said that the ECtHR would have ‘stepped in’, if the domestic courts had not abided by the judgment of the tcc.176
On 6 March 2018, the ECtHR announced that it would publish its judgments in the cases of Alpay and Altan on 20 March 2018—two applications among the eight that were given priority and communicated to the Government.177 Then, on 15 March 2018, the tcc delivered another ruling on Alpay’s second application, prompted by the non-implementation of the tcc’s previous ruling. The tcc held that the non-implementation of its previous judgment constituted a violation of Alpay’s right to personal liberty.178 Unlike its first ruling, the second ruling of the tcc provoked no governmental critique.179 This time, the lower court did not refuse to abide by the tcc’s ruling and decided to release Alpay, but only on the condition that he would be put under house arrest.180 Finally, the ECtHR found violations of Articles 5(1) and 10 of the echr in Alpay and Altan on 20 March 2018.181 More importantly, notwithstanding some reservations, the ECtHR reaffirmed its stand that the right to individual complaint to the tcc constituted an effective remedy for complaints concerning the deprivation of liberty.182
Two divergent views emerged as to the implications of the ECtHR’s involvement in the resolution of the, at first glance, constitutional but also (as the above description of events suggests) international crisis. The first view emphasised that ‘the ECtHR has now resuscitated the tcc and acted as a catalyser of human rights protection at domestic level’, while holding on to its subsidiary role.183 The second view, however, highlighted the coordinated efforts between Jagland, the ECtHR, and the national institutions, including the tcc, to create one specific outcome: to preserve the appearance of the individual application mechanism to the tcc as effective.184 In the end, these coordinated efforts led to the ECtHR’s assessment of the effectiveness of domestic remedies as being restricted to the observance of constitutional hierarchy.185
The subsequent case law of both judicial institutions appears to have confirmed the second view. After Alpay and Altan, it took more than a year until the tcc made its rulings on several other cases concerning the detention of journalists that had been given priority by the ECtHR in 2017.186 Some of those tcc’s rulings were neither in line with the ECtHR’s case law, nor compatible with its own case law.187 Kerem Altıparmak, a human rights lawyer in Turkey, has underlined that only a handful of rulings issued by the tcc and finding violations of the Constitution in carefully selected cases sufficed for the ECtHR to sustain its view that the individual complaint procedure to the tcc operated well.188 This has been the case despite the fact that the ECtHR found an abuse of criminal proceedings in two cases concerning the post-coup detention measures;189 in these two cases, the tcc had either found no violation,190 or rejected the application straight away as inadmissible.191 Nonetheless, the ECtHR has continued to proceed with the assumption that the tcc operates effectively and to wait until the tcc deals with those cases that are also pending before the ECtHR, even though they have been given priority.192
As Altıparmak emphasises, these events involving Jagland, the ECtHR, the tcc, and probably also governmental officials suggest a cooperation that went well beyond what was aimed by the partnership between the ECtHR and the constitutional courts of the member states.193 In its current form, the interaction between the tcc and the ECtHR appears to be motivated towards preserving the appearance of the individual complaint mechanism to the tcc as functioning effectively, rather than strengthening the implementation of the echr on the domestic level. The exact content and scale of the ‘assistance’ offered by former sg Jagland in the resolution of the crisis created by the lower courts’ resistance to the tcc is unavailable to us. Yet, the available information indicates that he was involved in the process that led to another temporary solution to a problem that might have brought about ‘the end of the system’, as Jagland himself had put it.
The way in which the post-coup cases against Turkey have been managed as described here may not be an isolated instance. There have also been discussions on Jagland’s role related to inexplicably long delays of the ECtHR in concluding priority cases against Russia, underlining his efforts to avoid any steps that might lead to Russia’s exit from the CoE.194 As highlighted by Jagland, Russia’s potential exit or exclusion from the CoE would indeed deprive individuals of the right to bring their cases against Russia to the ECtHR. Yet, over the past decade, it has already become more difficult for individuals, including those from Russia, to reach the ECtHR.195 As described above, the management of the post-coup Turkey cases further indicates that the assistance offered by the former sg Jagland to national authorities and his diplomatic interactions were instrumental in preventing cases from reaching the ECtHR.
8 Conclusion
This article has examined former sg Jagland’s responses to the systemic breaches of the core principles of the CoE, by focusing on his engagements with the issues arising from Russia’s annexation of the Crimea and Turkey’s state of emergency following the attempted coup. It has shown that the role of the sg was crucial in facilitating the reversal, production, or postponement of other CoE bodies’ responses to the severe breaches of the echr and the Statute. The sg’s interventions in the case of Russia actively sought the reversal of the pace’s sanctions, despite Russia’s failure to comply with the pace’s resolutions. The sg’s coinciding engagements with the issues addressed or to be addressed by the ECtHR concerning Turkey’s state of emergency measures facilitated the production of certain outcomes, while postponing others. The ECtHR’s recognition of domestic remedies in Turkey as effective—even though they were far from capable of providing appropriate remedies to those affected by the state of emergency—either delayed the timely processing of post-coup cases against Turkey or prevented those affected from reaching the ECtHR.
Jagland’s term in office was not only marked by a rapid consolidation of authoritarian tendencies, of which Russia and Turkey constitute two extreme examples in their own right; it was also a period of various political and economic crises that severely weakened the member states’ support of the organisation.196 Even though both countries have posed significant challenges to the organisation because of their steady move away from the CoE’s core principles, they have retained their significance for the organisation itself, due to various political and financial reasons. Most crucially, in a political context, where the CoE was in need of reclaiming and reinforcing its distinctive role within Europe, its ability to hold the EU and non-EU member states together has gained particular gravity.
In this context, Jagland’s policy preferences prioritised the preservation of the unity and protection of the institutions themselves over holding member states accountable. The solution offered by his policies with regard to the two critical events examined in this article was to keep all members on board, even if this required the postponement or reversal of the responses facilitated and even required by the pre-established principles, rules, and procedures of the CoE organs.
This might be seen as the right kind of policy preference for such pressing times for the political head of the organisation, whose mandate requires the protection of the organisation’s interests. However, one repercussion of this policy is that the very legitimacy of the CoE organs has been undermined by their departure from pre-established principles, rules, and procedures, based on pragmatic grounds. A second repercussion is that such a deviation from principles, rules, and procedures resembles the tendency prevailing among the populist authoritarian regimes that claim the ‘primacy of politics over the rule of law’,197 even though they routinely use the law and judiciary for political purposes. This obviously runs counter to the rhetoric of the former sg Jagland, who spent considerable time seeking to address the threats posed by such tendencies and underlined the significance of the acquis and legal character of the Convention system to support the member states’ resilience to ‘populism’. The only instance in which Jagland set aside his cautious diplomatic policy limited to dialogue and persuasion and went beyond mere condemnation of the breaches of the fundamental principles was the case of Azerbaijan, with regard to the Mammadov case. Yet, the singling out Azerbaijan in the face of comparable human rights crises further undermined the even-handedness of the sg’s human rights diplomacy efforts.198 At the two critical junctures examined here, such political expediency was encouraged and facilitated by the sg of the CoE in a political context where the breaches of the CoE principles by member states have gained a systemic character. It remains to be seen how the new sg, Marija Pejčinović Burić, will deal with her predecessor’s legacy.
Acknowledgements
I would like to thank Kerem Altıparmak, Bill Bowring, Başak Çalı, Alice Donald, Anne-Katrin Speck, and the anonymous reviewers for their helpful input to this article. All errors and omissions remain mine. The research for this article benefited from both the Philipp Schwarz and Georg Forster Fellowships of the Alexander von Humboldt Foundation.
On the capacities and shortcomings of the CoE bodies to respond to such developments, see, N Muižnieks, ‘The Council of Europe’s Response to Recent Democratic Backsliding’, in European Yearbook of Human Rights 2019, P Czech et al (eds), (Intersentia 2019); W Benedek, ‘Are the Tools of the Council of Europe Sufficient to Protect Human Rights, Democracy and the Rule of Law from Backsliding’ (2020) 1 European Convention on Human Rights Law Review 151; W Benedek, ‘The Effectiveness of the Tools of the Council of Europe Against Democratic Backsliding: What Lessons Can Be Learned from the ‘Greek Case’’ (2020) 2 Austrian Law Journal 1 (hereafter ‘The Effectiveness of the Tools of the Council of Europe’).
E.g., Muižnieks (n 1) 29, 31; B Bowring, ‘The Crisis of the European Court of Human Rights in the Face of Authoritarian and Populist Regimes’, in The Future of International Courts: Regional, Institutional and Procedural Challenges, A Kent, N Skoutaris and J Trinidad (eds), (Routledge 2019) 83–86; K Koroteev and S Golubok ‘Erdogan’s Unexpected Ally’ (Open Democracy, 5 September 2016): <https://www.opendemocracy.net/en/can-europe-make-it/erdogan-s-unexpected-ally/>.
Secretary General of the Council of Europe, ‘State of Democracy, Human Rights and Rule of Law: Populism – How Strong are Europe’s Checks and Balances?’ (Council of Europe, 2017): <https://rm.coe.int/state-of-democracy-human-rights-and-the-rule-of-law-populism-how-stron/168070568f>, 5.
Secretary General of the Council of Europe, ‘Ready for Future Challenges – Reinforcing the Council of Europe’ (Council of Europe, April 2019): <https://rm.coe.int/168093af03>, 7–9; Secretary General of the Council of Europe, ‘State of Democracy, Human Rights and the Rule of Law in Europe – A Shared Responsibility for Democratic Security in Europe’ (Council of Europe, May 2015): <https://edoc.coe.int/en/an-overview/6455-state-of-democracy-human-rights-and-the-rule-of-law-in-europe.html#>, 13 (underlining the legal nature of the Convention system as a safeguard against populist actions and reactions).
Turkey and Russia have consistently ranked among the states with the highest number of breaches of the echr and those responsible for a large percentage of applications piling up at the Court. In 2020, 22 per cent of the applications were lodged against the Russian Federation, while 19 per cent were against Turkey. See, ECtHR, ‘The echr in Facts & Figures 2020’ (2021): <https://www.echr.coe.int/Pages/home.aspx?p=reports/factsfigures&c=>.
Russia’s contribution to the CoE totalled more than 32 million Euros in 2019. Turkey’s contribution exceeded 14 million Euros in 2019. See, Committee of Ministers, ‘Council of Europe Programme and Budget 2020–2021’ (20 December 2019) cm(2020)1, 184.
Given that much of the sg’s activities are carried out by way of diplomacy, much of which takes place behind closed doors, data collection as to the sg’s engagement with member states and with other CoE bodies faces challenges of secrecy. This study reviewed all of the material available at the CoE’s official website concerning Jagland’s speeches, letters, reports, and visits with regard to Russia’s annexation of the Crimea and Turkey’s state of emergency. See: <https://www.coe.int/en/web/secretary-general/thorbjorn-jagland>.
Article 36(b) Statute of the Council of Europe.
Regulations adopted by the Committee of Ministers (43rd Meeting of the Ministers’ Deputies on 3 to 6 December 1956) with the agreement of the Assembly, subsequently amended as to paragraphs 1 and 8 as a result of a proposal by the Assembly (Recommendation 289 of 23 September 1961), by the Committee of Ministers (107th Meeting of the Ministers’ Deputies on 13 to 20 March 1962), with the agreement of the Standing Committee (Meeting of 30 March 1962). See, Committee of Ministers, ‘Regulations Relating to the Appointment of the Secretary General, Deputy Secretary General and Secretary General of the Assembly having the Rank of Deputy Secretary General’ (3–6 December 1956): <https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805cfff2#_ftn3>, Article 8(a) and 8(b).
For the full list of sg s, see: <https://70.coe.int/de/secretary-generals-of-the-council-of-europe>.
See, M Bond, The Council of Europe: Structure, History and Issues in European Politics (Routledge 2012) 66.
Article 37 Statute of the Council of Europe. Also see, TEJ Kleinsorge, ‘The CoE’s Activities’, in Council of Europe, TEJ Kleinsorge (ed), (3rd edn, Wolters Kluwer 2019) para 230.
M Ruffert, ‘Secretariat’, in The Council of Europe: Its Law and Policies, S Schmahl and M Breuer (eds), (Oxford University Press 2017) 223.
AH Robertson, The Council of Europe: Its Structure, Functions and Achievements (2nd edn, Stevens § Sons Limited 1961) 71–72; F Benoît-Rohmer and H Klebes, Council of Europe Law – Towards a Pan-European Legal Area (Council of Europe 2005) 71.
Ruffert (n 13) 223.
This function has rarely been used in the history of the CoE. See, K Istrefi, ‘A New Mechanism for Supervision of Derogations from the European Convention on Human Rights: Filling the Accountability Gap?’ (Blog van het Utrecht Centre for Accountability and Liability Law, 8 October 2019): <http://blog.ucall.nl/index.php/2019/10/a-new-mechanism-for-supervision-of-derogations-from-the-european-convention-on-human-rights-filling-the-accountability-gap/>, defining it as a ‘retired’ article for its non-use.
Venice Commission, ‘Adopting the Revised Statute of the European Commission for Democracy Through Law’ (21 February 2002) CDL (2002) 27, Article 3(2).
Muižnieks (n 1) 10.
Ibid.
J Petaux, Democracy and Human Rights for Europe: The Council of Europe’s Contribution (Council of Europe 2009) 55.
Ibid 68–69; Robertson (n 14) 72–73; Benoît-Rohmer and Klebes (n 14) 48 and 72.
Petaux (n 20) 68.
Klaus Brummer, ‘Uniting Europe: The Council of Europe’s Unfinished Mission’ (2012) 20(3) European Review 403, 414–415.
See, Committee of Ministers (n 9) (emphasis added). Also see, Committee of Ministers, ‘Rules and Procedures for the Future Elections of the Secretary General of the Council of Europe – Joint Interpretive Statement’ (24 March 2010): <https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016808d9986>, Appendix 2, providing a framework for the assessment of the ‘suitability for the post’, ‘highest ability’ and ‘highest integrity’. The Joint Interpretive Statement was adopted by the Parliamentary Assembly of the Council of Europe on 12 March 2010.
Parliamentary Assembly of the Council of Europe, ‘Council of Europe-European Union: a Sole Ambition for the European Continent – Report by Jean-Claude JUNCKER, Prime Minister of Luxembourg, for the Attention of the Heads of State and Government of the Member States of the Council of Europe’ (11 April 2006) Doc 10897, 13 and 22. Also see, Committee of Ministers, ‘Election of the Secretary General’ (11 January 2019) cm/Inf(2019)5, paras 2–4.
Ibid.
Committee of Ministers, ‘117th Session of the Committee of Ministers (10–11 May 2007) – Follow Up’ (18 May 2007) cm/Notes/996/1.5.
See, Committee of Ministers (n 24).
Parliamentary Assembly of the Council of Europe, ‘Election of the Secretary General of Council of Europe’ (19 June 2009) Doc 1967.
Parliamentary Assembly of the Council of Europe, ‘Thorbjørn Jagland Elected Secretary General of the Council of Europe’ (29 September 2009): <https://pace.coe.int/en/news/2589>.
For his biography, see: <https://www.coe.int/en/web/secretary-general/biography-thorbjorn-jagland>.
Bond (n 11) 75. Having used his legal powers under Article 52 echr, Terry Davis requested an explanation from all 46 member states, underlining that, given the severity of the allegations, ‘Europe’s response should go beyond political statements and inquiries.’ See, Council of Europe, ‘Reports of Illegal Detention and “Rendition Flights” in Council of Europe Member States – The Secretary General Activates the Procedure Under Article 52 of the European Convention on Human Rights’ (23 November 2005): <https://rm.coe.int/168071df19>.
Bond (n 11) 67–68.
T Jagland, ‘60th Anniversary of the Council of Europe – Event at the Austrian Parliament’ (2 December 2009): <https://www.coe.int/en/web/secretary-general/speeches-2009-thorbjorn-jagland/-/asset_publisher/tNlVrnmpn0MU/content/60th-anniversary-of-the-council-of-europe-event-at-the-austrian-parliament?inheritRedirect=false>.
See, Bond (n 11) 68–74.
On failed attempts by other former sg s to be elected for a second time, see, Petaux (n 20) 68.
Norwegian Ministry of Foreign Affairs, ‘Norway Launches Jagland’s Re-Election’ (6 November 2013): <https://www.regjeringen.no/en/aktuelt/jagland-re-election/id745047/>.
Parliamentary Assembly of the Council of Europe, ‘Election of the Secretary General of the Council of Europe’ (10 June 2014) Doc 13525.
A Gardner, ‘Jagland Re-Elected Head of Council of Europe’ (Politico, 25 June 2014): <https://www.politico.eu/article/jagland-re-elected-head-of-council-of-europe/>.
Council of Europe, ‘Thorbjørn Jagland Re-Elected Secretary General of the Council of Europe’ (24 June 2014): <https://www.coe.int/en/web/portal/news-2014/-/asset_publisher/o7J4kBL595Ox/content/thorbj-rn-jagland-re-elected-secretary-general-of-the-council-of-europe?desktop=true>.
Parliamentary Assembly of the Council of Europe, ‘The Future of the Council of Europe in the Light of its 60 Years of Experience’ (1 October 2009) Resolution 1689 (2009), para 13.
As of 2009, 119,300 applications were pending before a judicial formation. See, ECtHR, ‘Analysis of Statistics 2009’ (January 2010): <https://www.echr.coe.int/Documents/Stats_analysis_2009_ENG.pdf>, 4.
Parliamentary Assembly of the Council of Europe, ‘Budgets of the Council of Europe for the Financial Year 2010’ (29 May 2009) Opinion 272.
Bond (n 11) 68; Brummer (n 23) 404–405. See also, Parliamentary Assembly of the Council of Europe (n 42) para 8 (underlining the need for the reaffirmation and fortification of the CoE’s ‘role as a pan-European political organisation’).
Secretary General of the Council of Europe, ‘Ready for Future Challenges’ (n 4) 39–41.
The reports by the former sg provide information on such problems and resultant legislative and political changes in the member states. See, in particular, Secretary General of the Council of Europe, ‘State of Democracy’ (n 4); Secretary General of the Council of Europe, ‘State of Democracy, Human Rights and the Rule of Law in Europe – A Security Imperative for Europe’ (Council of Europe, 2016): <https://rm.coe.int/1680646af8>; Secretary General of the Council of Europe (n 3). Also see, S Greer, J Gerards and R Slowe, Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges (Cambridge University Press 2018) 39–50.
See, LR Glas, ‘From Interlaken to Copenhagen: What Has Become of the Proposals Aiming to Reform the Functioning of the European Court of Human Rights?’ (2020) 20 Human Rights Law Review 121.
Protocol No 15 Amending the Convention for the Protection of Human Rights and Fundamental Freedoms (24 June 2013) cets No 213.
Protocol No 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (2 October 2014) cets No 214.
Following the Interlaken Conference in 2010, five other conferences were held in Izmir (2011), Brighton (2012), Oslo (2014), Brussels (2015), and Copenhagen (2018).
See, Glas (n 48) 125.
Ibid 150.
MR Madsen, ‘Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe?’ (2018) 9 Journal of International Dispute Settlement 199. For an overview of the literature addressing the impact of the growing emphasis on the principle of subsidiarity and margin of appreciation on the Court’s case law, see, MR Madsen in this Special Issue, and Glas (n 48) 135–136.
ECtHR, ‘Italy Ratifies Protocol No. 15 to the Convention, Triggering its Entry into Force in Respect of All Council of Europe Member States’ (22 April 2021) echr 130 (2021): <http://hudoc.echr.coe.int/eng-press?i=003-7003415-9439473>.
Secretary General of the Council of Europe, ‘Contribution of the Secretary General of the Council of Europe to the Preparation of the Interlaken Ministerial Conference’ (18 December 2009) sg/Inf(2009)20, paras 5, 13, 16, 19.
Ibid 13.
ECtHR, ‘Analysis of Statistics 2011’ (January 2012) 4: <https://www.echr.coe.int/Documents/Stats_analysis_2011_ENG.pdf>.
ECtHR, ‘Analysis of Statistics 2016’ (January 2017) 4: <https://www.echr.coe.int/Documents/Stats_analysis_2016_ENG.pdf>.
ECtHR, ‘Analysis of Statistics 2018’ (January 2019) 4: <https://www.echr.coe.int/Documents/Stats_analysis_2018_ENG.pdf>.
See, MR Madsen in this Special Issue.
E.g., T Jagland, ‘126th Session of the Committee of Ministers’ (Sofia, 18 May 2016): <https://www.coe.int/en/web/secretary-general/-/126th-session-of-the-committee-of-ministers>.
E.g., T Jagland, ‘Deutsche Gesellschaft für Auswärtige Politik, “Democratic Security in Times of Crisis – The Role of the Council of Europe”’ (Berlin, 5 July 2016): <https://www.coe.int/en/web/secretary-general/-/-democratic-security-in-times-of-crisis-the-role-of-the-council-of-europe->.
Secretary General of the Council of Europe (n 3) 4.
Ibid.
Ibid.
Ibid.
See, for example, T Jagland, ‘Letter to the President of the Supreme Electoral Board of Turkey, Sadi Güven’ (15 April 2019): <https://rm.coe.int/image2019-04-16-171615-letter-addressed-to-mr-sadi-guven-president-of-/168093fe38>, criticising the arbitrary interventions concerning the elected mayors following the local elections; T Jagland, ‘Letter to the Speaker of Sejm, Marek Kuchciński’ (18 July 2017): <https://rm.coe.int/20170718-sg-letter-to-marek-kuchcinski-poland/16807327a6>, expressing his concerns about a draft law on the Polish Supreme Court that would terminate the mandate of its judges; T Jagland, ‘Letter to the Prime Minister of Hungary, Victor Orbán’ (15 April 2016): <https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680645592>, reminding the Hungarian Government of its obligations regarding the refugees under the echr.
E.g., Benedek, ‘The Effectiveness of the Tools of the Council of Europe’ (n 1) 10.
Also see, ibid.
Muižnieks (n 1) 29 (emphasis added).
This came only after receiving heavy criticism. For an op-ed, where Jagland responds to such criticism, see: T Jagland, ‘Council of Europe is Not Blind to Azerbaijan’s Violations’ (Politico, 22 May 2014): <https://www.politico.eu/article/council-of-europe-is-not-blind-to-azerbaijans-violations/>.
Mammadov v Azerbaijan 15172/13 (ECtHR, 22 May 2014). See also, Committee of Ministers, ‘Execution of the Judgment of the European Court of Human Rights Ilgar Mammadov Against Azerbaijan’ (25 October 2017) Interim Resolution cm/ResDH(2017)379.
Council of Europe, ‘Council of Europe Secretary General Launches Inquiry into Respect for Human Rights in Azerbaijan’ (16 December 2015) Ref. dc 187(2015): <https://www.coe.int/en/web/portal/news-2015/-/asset_publisher/9k8wkRrYhB8C/content/secretary-general-launches-inquiry-into-respect-for-human-rights-in-azerbaijan?inheritRedirect=false>.
Secretary General of the Council of Europe (n 56) para 10.
T Jagland, ‘Farewell Speech at the European Court of Human Rights’ (Strasbourg, 16 September 2019): <https://www.coe.int/en/web/secretary-general/-/farewell-speech-at-the-european-court-of-human-rights>.
See, Council of Europe (n 74).
Jagland (n 76). See also, Secretary General of the Council of Europe, ‘Ready for Future Challenges’ (n 4) 14.
Having overviewed the state of emergency derogations from the echr in Ukraine, France, and Turkey, pace recommended the sg ‘to open an inquiry under Article 52 of the Convention in relation to any state derogating from the Convention’. See, Parliamentary Assembly of the Council of Europe, ‘State of Emergency: Proportionality Issues Concerning Derogations Under Article 15 of the European Convention on Human Rights’ (24 April 2018) Resolution 2209 (2018). Also, for an op-ed, which invited the sg to use Article 52 of the echr in relation to state of emergency measures in Turkey, see, Koroteev and Golubok (n 2).
See, M Duranti, The Conservative Human Rights Revolution: European Identity, Transnational Politics, and the Origins of the European Convention (Oxford University Press 2017) 179.
E.g., P Roter, ‘Russia in the Council of Europe: Participation à la carte’, in Russia and the European Court of Human Rights: The Strasbourg Effect, L Mälksoo and W Benedek (eds), (Cambridge University Press 2017) 42.
On Russia, see, L Mälksoo, ‘Introduction: Russia, Strasbourg, and the Paradox of a Human Rights Backlash’, in Russia and the European Court of Human Rights: The Strasbourg Effect, L Mälksoo and W Benedek (eds), (Cambridge University Press 2017); B Bowring, ‘Politics and Pragmatism – The Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights’ (2018) 1 East European Yearbook on Human Rights 5. On Turkey, see, O Akbulut, ‘Turkey: The European Convention on Human Rights as a Tool for Modernisation’, in Criticism of the European Court of Human Rights – Shifting the Convention System: Counter-Dynamics at the National Level, P Popelier, S Lambrecht and K Lemmens (eds), (Intersentia 2016); D Kurban, ‘Rethinking Effectiveness: Authoritarianism, State Violence and the Limits of the European Court of Human Rights’, in The European Court of Human Rights: Current Challenges in Historical Perspective, HP Aust and E Demir-Gürsel (eds), (Edward Elgar Publishing 2021) 177; E Özbudun and F Türkmen ‘Impact of the ECtHR Rulings on Turkey’s Democratization: An Evaluation’ (2013) 35(4) Human Rights Quarterly 985.
Roter (n 81) 47.
Mälksoo (n 82) 15.
Anchugov and Gladkov v Russia 11157/04 and 15162/05 (ECtHR, 4 July 2013). Russia nonetheless found a way to execute this judgment, albeit partially. Subsequently, the cm closed the supervision of the execution of the case on the ground that ‘the measures adopted by the authorities appear to be an adequate response to the present judgments’. See, Committee of Ministers, ‘Execution of the Judgments of the European Court of Human Rights: Two Cases Against the Russian Federation’ (24 September 2019) Resolution cm/ResDH(2019)240. For a critique of the closure of this case by the cm without any general measures taken, which could prevent the repetition of similar violations, see, G Bogush and A Padskocimaite, ‘Case Closed, but What About the Execution of the Judgment? The Closure of Anchugov and Gladkov v. Russia’ (ejil:Talk!, 30 October 2019): <https://www.ejiltalk.org/case-closed-but-what-about-the-execution-of-the-judgment-the-closure-of-anchugov-and-gladkov-v-russia/>.
oao Neftyanaya Kompaniya Yukos v Russia 14902/04 (ECtHR, 20 September 2011).
Venice Commission, ‘Opinion on the Draft Amendments to the Constitution (as Signed by the President of the Russian Federation on 14 March 2020) Related to the Execution in the Russian Federation of Decisions by the European Court of Human Rights’ (18 June 2020) cdl-ad(2020)009, 7–9.
See, Human Rights Watch, ‘World Report 2020’ (2020): <https://www.hrw.org/sites/default/files/world_report_download/hrw_world_report_2020_0.pdf>, 572.
See, Commissioner for Human Rights, ‘Memorandum on the Human Rights Implications of the Measures Taken under the State of Emergency in Turkey’ (7 October 2016) CommDH(2016)35; International Commission of Jurists, ‘Justice Suspended: Access to Justice and the State of Emergency in Turkey’ (2018): <https://www.icj.org/wp-content/uploads/2018/12/Turkey-Access-to-justice-Publications-Reports-2018-ENG.pdf>; K Altıparmak and S Gürol, ‘Turkey’s Derogation of Human Rights under the State of Emergency: Examining its Legitimacy and Proportionality’ (2019) 22(1) Austrian Review of International and European Law Online 101.
The number of individual applications has shown a gradual decrease from 8,986 in 2012 to 3,505 in 2013, 1,584 in 2014, and 2,212 in 2015. In 2016 it rose to 8,303, and in 2017 to 25,978. See: <https://www.echr.coe.int/Pages/home.aspx?p=reports/factsfigures&c=>.
T Jagland, ‘Conference Best Practices of Individual Complaint to the Constitutional Courts in Europe’ (Strasbourg, 7 July 2014): <https://www.coe.int/en/web/secretary-general/speeches-2014-thorbjorn-jagland/-/asset_publisher/gFMvl0SKOUrv/content/conference-best-practices-of-individual-complaint-to-the-constitutional-courts-in-europe?inheritRedirect=false&redirect=https%3A%2F%2Fwww.coe.int%2Fen%2Fweb%2Fsecretary-general%2Fspeeches-2014-thorbjorn-jagland%3Fp_p_id%3D101_INSTANCE_gFMvl0SKOUrv%26p_p_lifecycle%3D0%26p_p_state%3Dnormal%26p_p_mode%3Dview%26p_p_col_id%3Dcolumn-4%26p_p_col_count%3D1>.
T Jagland, ‘Reception Given by the Secretary General on the Occasion of the International Human Rights Day’ (Moscow, 7 December 2016): <https://www.coe.int/en/web/secretary-general/-/reception-given-by-the-secretary-general-on-the-occasion-of-the-international-human-rights-day>.
T Jagland, ‘Annual Conference of the Russian Regional Human Rights Ombudsmen’ (Moscow, 7 December 2016): <https://www.coe.int/en/web/secretary-general/-/annual-conference-of-the-russian-regional-human-rights-ombudsmen>.
See, Council of Europe, ‘Secretary General’s Visit to Turkey’ (Ankara, 25 June 2013): <https://www.coe.int/en/web/secretary-general/home/-/asset_publisher/hr4DDZ5cshvP/content/secretary-general-s-visit-to-turkey;jsessionid=0E887DA42B74F25D4CDCACEA8412AE9A>; I Yezdaniz, ‘Turkey Belongs to Europe, Which Would Suffer Without Turkey’ (Hürriyet, 17 February 2018): <https://www.hurriyetdailynews.com/turkey-belongs-to-europe-which-would-suffer-without-turkey-council-of-europe-head-127461>.
Bond (n 11) 68–69.
See, Jagland (n 92).
Ibid.
T Jagland, ‘High-Level Segment of the 31st Session of UN Human Rights Council’ (Geneva, 1 March 2016): <https://www.coe.int/en/web/secretary-general/-/high-level-segment-of-the-31st-session-of-un-human-rights-council>.
T Jagland, ‘Conference on the Protection of Human Rights of Refugees, Asylum Seekers and Migrants (Nafplio, 27 May 2016): <https://www.coe.int/en/web/secretary-general/-/conference-on-the-protection-of-human-rights-of-refugees-asylum-seekers-and-migrants>.
T Jagland, ‘Address by Thorbjørn Jagland, to the Parliamentary Assembly of the Council of Europe’ (Strasbourg, 22 January 2018): <https://www.coe.int/en/web/secretary-general/-/address-by-thorbj-rn-jagland-to-the-parliamentary-assembly-of-the-council-of-europe>.
In 2017, Russia first cut two-thirds of its contribution, and in 2018 it did not pay at all until the voting rights of Russian parliamentarians were restored by the pace in June 2019. See, ‘Russia Withholds Payments to the Council of Europe’ (Deutsche Welle, 1 March 2018) <https://www.dw.com/en/russia-withholds-payments-to-the-council-of-europe/a-42792673>.
Turkey had become one of the major contributors in 2016. In 2017, the pace awarded the Václav Havel Human Rights Prize 2017 to a former judge who had been detained for alleged links to the Gülen movement, which allegedly masterminded the failed coup in 2016. In reaction to this move, Turkey decided to change its status to an ordinary contributor. See, ibid.
See, Parliamentary Assembly of the Council of Europe, ‘Budgetary Crisis at the Council of Europe: Rules Committee Outlines the Impact on the Work of the Assembly’ (9 March 2018): <http://assembly.coe.int/nw/xml/News/News-View-EN.asp?newsid=6984&lang=2>.
For a brief summary of the events leading up to Russia’s annexation of Crimea, see, B Bowring, ‘Who are the “Crimea People” or “People of Crimea”? The Fate of the Crimean Tatars, Russia’s Legal Justification for Annexation, and Pandora’s Box’, in The Use of Force against Ukraine and International Law, S Sayapin and E Tsybulenko (eds), (Springer 2018) 26–7.
Parliamentary Assembly of the Council of Europe, ‘Reconsideration on Substantive Grounds of the Previously Ratified Credentials of the Russian Delegation’ (10 April 2014) Resolution 1990 (2014).
Ibid.
These included ‘the right to be appointed rapporteur’, ‘the right to be a member of an ad hoc committee on the observation of elections’, ‘the right to represent the Assembly in Council of Europe bodies as well as external institutions and organisations, both institutionally and on an occasional basis’. See, Parliamentary Assembly of the Council of Europe, ‘Challenge, on Substantive Grounds, of the Still Ungratified Credentials of the Delegation of the Russian Federation’ (28 January 2015) Resolution 2034, para 14.
See, A Donald and AK Speck in this Special Issue.
See, Parliamentary Assembly of the Council of Europe (n 105) paras 6 and 13. For views expressed by the pace insiders that brought the breach of the principle of sovereignty to the fore, see, Roter (n 81).
Instead of being humiliated by pace’s non-ratification of its credentials, Russia decided to ‘walk out’ by not submitting the credentials. See, A Drzemczewski and K Dzehtsiarou, ‘Painful Relations Between the Council of Europe and Russia’ (ejil:Talk!, 28 September 2018): <https://www.ejiltalk.org/painful-relations-between-the-council-of-europe-and-russia>.
The Ministry of Foreign Affairs of the Russian Federation, ‘Statement of the Ministry of Foreign Affairs of the Russian Federation Concerning the Suspension of Payment of Russia’s Contribution to the Council of Europe for 2017’ (30 June 2017): <http://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/2805051>.
‘Russia Will Quit Council of Europe if Opponents Insist on its Expulsion, Says Lavrov’ (tass, 16 October 2018): <https://tass.com/politics/1026225>.
LR Glas, ‘The Assembly’s Appeasement Towards Russia’ (Strasbourg Observers, 27 September 2018): <https://strasbourgobservers.com/2018/09/27/the-assemblys-appeasement-towards-russia/#_ednref1>.
The Ministry of Foreign Affairs of the Russian Federation, ‘Foreign Ministry Statement on the Situation in pace and Prospects for Resuming Contributions to the Council of Europe’ (4 July 2018): <http://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/3287714>.
‘I Leave You, I Leave You Not. How Russia Tricked the Council of Europe into Self-Amputating its Powers’ (Euromaidan Press, 19 June 2019): <http://euromaidanpress.com/2019/06/19/i-leave-you-i-leave-you-not-how-russia-tricked-the-council-of-europe-into-self-amputating-its-powers/>.
‘Bring Russia Back From the Cold, Says Council of Europe Chief’ (Financial Times, 7 April 2019): <https://www.ft.com/content/8158d52a-5496-11e9-91f9-b6515a54c5b1>.
Ibid.
Ibid.
Jagland (n 100).
Ibid.
Parliamentary Assembly of the Council of Europe, ‘2019 Ordinary Session’ (22 January 2019) as (2019) cr 04, Communication by T Jagland; Secretary General of the Council of Europe, ‘Ready for Future Challenges’ (n 4) 10.
Jagland (n 100).
Committee of Ministers, ‘A Shared Responsibility for Democratic Security in Europe’ (17 May 2019) cm/Del/Dec(2019)129/2. Note that the cm’s decision was interpreted as an intervention in the internal affairs of the pace. See, Muižnieks (n 1) 9; LR Glas, ‘Russia Left, Threatened and Won: Its Return to the Assembly Without Sanctions’ (Strasbourg Observers, 2 July 2019): <https://strasbourgobservers.com/2019/07/02/russia-left-threatened-and-has-won-its-return-to-the-assembly-without-sanctions/>.
Parliamentary Assembly of the Council of Europe, ‘Strengthening the Decision-Making Process of the Parliamentary Assembly Concerning Credentials and Voting’ (24–25 June 2019) Resolution 2287 (2019), para 7.
Ibid para 10.
Drzemczewski and Dzehtsiarou (n 110).
All delegates mentioned Russia in their remarks when the draft resolution was debated at the pace in the October 2018 session. See, S Steininger, ‘Managing the Backlash? The pace and the Question of Participation Rights for Russia’ (Verfassungsblog, 9 October 2018): <https://verfassungsblog.de/managing-the-backlash-the-pace-and-the-question-of-participation-rights-for-russia/>.
Glas (n 123).
See, The Ministry of Foreign Affairs of the Russian Federation, ‘Foreign Ministry Statement on the Situation in pace and Prospects for Resuming Contributions to the Council of Europe’ (4 July 2018): <http://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/3287714>.
Roter (n 81) 48. These were also the strongest sanctions imposed on the Russian delegation since Russia’s accession to the CoE. See, Kleinsorge (n 12) para 170. But it should be noted that the suspension of voting rights is the weakest among the sanctions to which pace can impose.
Glas (n 123).
Ibid.
Committee of Ministers (n 123).
Parliamentary Assembly of the Council of Europe (n 124) para 8.
Cf Secretary General of the Council of Europe, ‘Ready for Future Challenges’ (n 4) 10.
The sharp rise in the number of applications against Turkey in 2017 is indicative of this. See, (n 90).
E.g., D Kurban, ‘A Love Letter from Strasbourg to the Turkish Constitutional Court’ (Verfassungsblog, 27 March 2018): <https://verfassungsblog.de/a-love-letter-from-strasbourg-to-the-turkish-constitutional-court/>; BE Oder, ‘Independent Journalism v. Political Courts: The Cumhuriyet Trial in Turkey and Strasbourg’ (Verfassungsblog, 4 May 2019): <https://verfassungsblog.de/independent-journalism-v-political-courts-the-cumhuriyet-trial-in-turkey-and-strasbourg/>; T Şirin and NU Orcan ‘The Symbolic Downfall of the ECtHR in Turkish Public Opinion’ (Verfassungsblog, 9 September 2020): <https://verfassungsblog.de/the-symbolic-downfall-of-the-ecthr-in-turkish-public-opinion/>.
See, Koroteev and S Golubok (n 2).
Kurban (n 137); K Altıparmak (interviewed by ÖÇ Akarsu), ‘aihm daha muhafazakar bir karar veremezdi’ (Gazete Duvar, 27 March 2018): <https://www.gazeteduvar.com.tr/yazarlar/2018/03/27/kerem-altiparmak-aihm-daha-muhafazakar-bir-karar-veremezdi/>.
Amnesty International, ‘Purged Beyond Return? No Remedy for Turkey’s Dismissed Public Sector Workers’ (25 October 2018): <https://www.amnesty.org/en/documents/eur44/9210/2018/en/>, 9.
For details, see, Commissioner for Human Rights (n 89) para 33; Amnesty International, ‘No End in Sight – Purged Public Sector Workers Denied a Future in Turkey’ (22 May 2017): <https://www.amnesty.org/en/documents/eur44/6272/2017/en/>.
See also, E Turkut, ‘Has the European Court of Human Rights Turned a Blind Eye to Alleged Rights Abuses in Turkey?’ (ejil:Talk!, 28 December 2016): <https://www.ejiltalk.org/has-the-european-court-of-human-rights-turned-a-blind-eye-to-alleged-rights-abuses-in-turkey/>.
Zihni v Turkey 59061/16 (ECtHR, dec, 29 November 2016).
Ibid para 24–30.
Commissioner for Human Rights (n 89) para 43.
See, Venice Commission, ‘Memorandum Prepared by the Ministry of Justice of Turkey for the Visit of the Delegation of the Venice Commission to Ankara on 3–4 November 2016 in Connection with the Emergency Decree Laws’ (23 November 2016) cdl-ref(2016)067, 35; Venice Commission, ‘Opinion on Emergency Decree Law Nos. 667–676 Adopted Following the Failed Coup of 15 July 2016’ (12 December 2016) cdl-ad(2016)037, paras 200–202, 227–228.
Venice Commission, ‘Opinion on Emergency Decree Law Nos. 667–676’ (n 146) para 228.
Ibid.
Platform for Peace and Justice, ‘Council of Europe’s Perspectives on the Rule of Law and Human Rights in Turkey in the Aftermath of July 2016 Coup Attempt’ (2018): <https://peacejustice.eu/report-ppj-released-new-report-coe-turkey-relations/>, para 118.
Venice Commission, ‘Opinion on Emergency Decree Law Nos. 667–676’ (n 146) paras 92 and 140 (emphasis added).
T Jagland, ‘Understanding Populism and Defending Europe’s Democracies: The Council of Europe in 2017’ (Strasbourg, 24 January 2017): <https://www.coe.int/en/web/secretary-general/-/understanding-populism-and-defending-europe-s-democracies-the-council-of-europe-in-2017>.
On 23 January 2017, the State of Emergency Decree Law no 685 on the establishment of the State of Emergency Inquiry Commission to review the individual measures commanded by decree laws was published in the Official Gazette no 29957: <https://www.resmigazete.gov.tr/eskiler/2017/01/20170123-4.htm>,.
Jagland (n 151).
Köksal v Turkey 70478/16 (ECtHR, dec, 6 June 2017).
Ibid para 24–25.
On the shortcomings of the State of Emergency Inquiry Commission that were apparent even before it started to operate, see, K Altıparmak, ‘Is the State of Emergency Commission, Established by Emergency Decree 685, an Effective Remedy?’ (ihop, 23 February 2017): <http://www.ihop.org.tr/en/wp-content/uploads/2017/03/IS-THE-STATE-OF-EMERGENCY-INQUIRY-COMMISSION.pdf>. This study also describes the features of this remedy and the nature of the applications to be brought before it as different from other ex post facto remedies that previously had been found effective and legitimate by the ECtHR.
See, e.g., E Turkut, ‘The Köksal Case Before the Strasbourg Court: A Pattern of Violations or a Mere Aberration?’ (Strasbourg Observers, 2 August 2017): <https://strasbourgobservers.com/2017/08/02/the-koksal-case-before-the-strasbourg-court-a-pattern-of-violations-or-a-mere-aberration/>; R Kunz, ‘A Further “Constitutionalization” to the Detriment of the Individual?’ (Völkerrechtsblog, 27 August 2018): <https://voelkerrechtsblog.org/de/a-further-constitutionalization-to-the-detriment-of-the-individual/>.
See, e.g., M O’Boyle, ‘Can the ECtHR Provide an Effective Remedy Following the Coup d’Etat and Declaration of Emergency in Turkey?’ (ejil:Talk!, 19 March 2018): <https://www.ejiltalk.org/can-the-ecthr-provide-an-effective-remedy-following-the-coup-detat-and-declaration-of-emergency-in-turkey/>; Kunz (157).
F. Kahraman, ‘Can Europe Save Turkey from Sliding into Authoritarianism?’ (Open Democracy, 13 June 2018): <https://www.opendemocracy.net/en/can-europe-make-it/can-europe-save-turkey-from-sliding-into-authoritarianism/>.
See, B Çalı, A Nußberger, T Markert and L Kokott, ‘LawRules #10: We Need to Talk About the European Convention on Human Rights’ (Verfassungsblog, 25 November 2020): <https://verfassungsblog.de/lawrules-10-we-need-to-talk-about-the-european-convention-on-human-rights/>.
Turkut (157).
Jagland (n 100).
For details, see, Amnesty International (n 140); Turkey Human Rights Litigation Support Project, ‘Access to Justice in Turkey? A Review of the State of Emergency Commission’ (15 October 2019): <https://www.turkeylitigationsupport.com/blog/2019/10/15/access-to-justice-in-turkey-a-review-of-the-state-of-emergency-inquiry-commissionnbsp>.
Altıparmak (n 156) 5.
T Jagland, ‘Conference on “Freedom of Expression: Still a Precondition for Democracy”’ (Strasbourg, 13 October 2015): <https://www.coe.int/en/web/secretary-general/speeches-2015-thorbjorn-jagland/-/asset_publisher/TQ9ylWpDFtLP/content/conference-on-freedom-of-expression-still-a-pre-condition-for-democracy-?inheritRedirect=false&redirect=https%3A%2F%2Fwww.coe.int%2Fen%2Fweb%2Fsecretary-general%2Fspeeches-2015-thorbjorn-jagland%3Fp_p_id%3D101_INSTANCE_TQ9ylWpDFtLP%26p_p_lifecycle%3D0%26p_p_state%3Dnormal%26p_p_mode%3Dview%26p_p_col_id%3Dcolumn-4%26p_p_col_count%3D1>.
See, D Kurban, ‘Think Twice before Speaking of Constitutional Review in Turkey’ (Verfassungsblog, 20 February 2018): <https://verfassungsblog.de/think-twice-before-speaking-of-constitutional-review-in-turkey/>.
See, Dec no 2016/12 (tcc, 4 August 2016).
See, Dec nos 2016/159 and 2016/160 (tcc, 12 October 2016).
ECtHR, ‘Recently Communicated Priority Cases on Detained Journalists in Turkey’ (15 November 2017) echr 346 (2017).
Şahin Alpay Dec no 2016/16092 (tcc, 11 January 2018).
Mehmet Hasan Altan (2) Dec no 2016/23672 (tcc, 11 January 2018).
See, B Çalı, ‘Will Legalism be the End of Constitutionalism in Turkey’ (Verfassungsblog, 22 January 2020): <https://verfassungsblog.de/will-legalism-be-the-end-of-constitutionalism-in-turkey/>.
Council of Europe, ‘Turkey: Secretary General Jagland Meets Turkish Leadership in Ankara on 15–16 February’ (13 February 2018): <https://www.coe.int/en/web/secretary-general/-/turkey-council-of-europe-secretary-general-jagland-meets-turkish-leadership-in-ankara-on-15-16-february-speech-to-the-candidate-judges-and-prosecutors>.
T Jagland, ‘Speech to the Candidate Judges and Prosecutors of the Justice Academy’ (Ankara, 16 February 2018): <https://www.coe.int/en/web/secretary-general/-/speech-to-the-candidate-judges-and-prosecutors-of-the-justice-academy>.
Ibid.
G Özalp, ‘Avrupa Konseyi’nden Kritik aym Uyarısı’ (Hürriyet, 13 March 2018): <https://www.hurriyet.com.tr/dunya/avrupa-konseyinden-kritik-aym-uyarisi-40769965>.
ECtHR, ‘Forthcoming Judgments and Decisions’ (6 March 2018) echr 091 (2018).
Şahin Alpay (2) Dec no 2018/3007 (tcc, 15 March 2018).
Kurban (n 137).
Note that, unlike Mr Alpay, Mr Altan was convicted on 16 February 2018 for ‘attempt to overthrow the government’ based on evidence found to be insufficient for even his arrest by the tcc. His subsequent application concerning the lower courts refusing his release had therefore lost its urgency and was only concluded by the tcc on 9 January 2020. See, Mehmet Hasan Altan (3) Dec no 2018/2629 (tcc, 9 January 2020).
Şahin Alpay v Turkey 13237/17 (ECtHR, 20 March 2018); Mehmet Hasan Altan v Turkey 16538/17 (ECtHR, 20 March 2018).
Şahin Alpay v Turkey (n 181) para 121; Mehmet Hasan Altan v Turkey (n 181) para 142.
See, S Gürol, ‘Resuscitating the Turkish Constitutional Court: The ECtHR’s Alpay and Altan Judgments’ (Strasbourg Observers, 3 April 2018): <https://strasbourgobservers.com/2018/04/03/resuscitating-the-turkish-constitutional-court-the-ecthrs-alpay-and-altan-judgments/>.
See, Kurban (n 137); Altıparmak (n 139).
Kurban (n 137).
See, Commissioner for Human Rights, ‘Third Party Intervention in Kavala v Turkey’ (20 December 2018) CommDH(2018)30, para 33–43, raising serious concerns about the effectiveness of the individual application procedure to the tcc based on the issue of ‘speediness’.
For an assessment, see, Turkey Human Rights Litigation Support Project, ‘Commentary on the May 2019 Judgments Adopted by the Turkish Constitutional Court on the Detention of Journalists and A Civil Society Leader’: <https://www.turkeylitigationsupport.com/the-turkish-constitutional-court>.
Altıparmak (n 139).
Selahattin Demirtaş v Turkey (2) [gc] 14305/17 (ECtHR, 22 December 2020). Also see the previous chamber judgment, Selahattin Demirtaş v Turkey (2) 14305/17 (ECtHR, 20 November 2018)); Kavala v Turkey 28749/18 (ECtHR, 10 December 2019).
Mehmet Osman Kavala Dec no 2018/1073 (tcc, 22 May 2019).
Selahattin Demirtaş (admissibility) Dec no 2016/25189 (tcc, 21 December 2017).
Interview with Kerem Altıparmak, Lawyer and the Chair of the Ankara Bar Association Human Rights Centre (Online, 11 June 2020).
Ibid.
Bill Bowring, for example, has pointed out a coincidence between the sg’s diplomatic engagements with Russia and the ECtHR’s delay in concluding Oleg Sentsov’s application against his arrest based on terrorism charges. Sentsov’s application against his arrest and subsequent detention was lodged with the ECtHR in 2014 and given priority status in June 2014 by the ECtHR. However, it was only communicated to the Russian Government on 20 September 2018, more than four years after having been prioritised by the Court. It was still not concluded when Sentsov was finally released in September 2019 as part of an exchange of dozens of political prisoners between Russia and the Ukraine. See, Bowring (n 2) 83–86.
See, Madsen (n 61); cf. JH Gerards and LR Glas, ‘Access to Justice in the European Convention on Human Rights System’ (2017) 35(1) Netherlands Quarterly of Human Rights 11.
MR Madsen, ‘From Boom to Backlash? The European Court of Human Rights and the Transformation of Europe’, in The European Court of Human Rights: Current Challenges in Historical Perspective, HP Aust and E Demir-Gürsel (eds), (Edward Elgar Publishing 2021) 21.
G Halmai, ‘Populism, Authoritarianism and Constitutionalism’ (2019) 20 German Law Journal 296, 306.
Testing Article 46(4) on Azerbaijan was seen, inter alia, as related to Azerbaijan’s relatively weak status within the cm, when compared to other ‘non-implementers’, such as Russia or the United Kingdom. See, JE Zastrow and A Zimmermann, ‘Council of Europe’s Committee of Ministers Starts Infringement Proceedings in Mammadov v. Azerbaijan: A Victory for the International Rule of Law’ (ejil:Talk!, 5 February 2018): <https://www.ejiltalk.org/council-of-europes-committee-of-ministers-starts-infringement-proceedings-in-mammadov-v-azerbaijan-a-victory-for-the-international-rule-of-law/>.