Time for dither and delay with Ankara's rights record is over

The deep erosion in the justice system can only be reversed through a root and branch reform.

Turkish government officials have long gone through the motions of cooperating with the ECtHR – the Strasbourg-based court attached to the 47-member state Council of Europe.

Even if Turkey did not change its laws or practices to prevent repeat violations, it generally showed respect for the rules.

It engaged with and showed respect for the committee of ministers – the body composed of foreign affairs ministers' deputies charged with enforcing judgments.

No longer.

A stark sign of disengagement from "business as usual" for Turkey has been its refusal to release two leading figures who have been wrongly imprisoned for more than three and four years respectively – Osman Kavala, a philanthropist and pillar of Turkish civil society, and Selahattin Demirtaş, a political opposition leader, both of whom I know personally.

The European Court, whose rulings Turkey has accepted as binding, has issued judgments calling for the immediate release of both men.

In rulings that found a violation of the rarely invoked Article 18 of the European Convention on Human Rights, the court found that their detention and imprisonment "pursued an ulterior purpose", namely, to silence them and stifle pluralism.

In short, it found that these were cases of political persecution.

The committee of ministers has already called three times for the release of Kavala, who has been detained since October 2017. It should do the same for Demirtaş when it meets again in March.

Spit in face

Turkey's response has been to spit in the face of the rest of Europe by slapping new, unfounded charges on both men, demonstrating the clearly political nature of the cases.

First, the authorities charged Kavala with organising the Gezi protests – mass demonstrations in 2013 against an urban development project.

When a court acquitted Kavala, the authorities immediately rearrested him – for allegedly being behind the 2016 failed coup attempt.

For good measure, they also accused him of "espionage".

But the European Court ruling is clear - there is no evidence to keep Kavala imprisoned on the first two charges.

As for the latest "espionage" charge, no credible evidence has yet been brought forward. These 'fantastical' accusations against Kavala would be laughable were their use to deprive him of his freedom not so utterly unjust.

The Demirtaş case has followed a similar logic.

A leader of Peoples' Democratic Party, the HDP, the second largest opposition parties, he is in pre-trial detention on baseless charges of 'terrorism'.

At the same time the European Court issued its final ruling in Demirtaş' favour in December 2020, a new 3,000+ page indictment against him and 107 others was accepted by a Turkish court.

The Turkish authorities seem willing to do anything to avoid releasing him, as pre-election season is approaching and the ruling AK Party seems intent on destroying competitors.

What can the Council of Europe and its member states do when a country shows brazen disregard for the obligations under the European Convention?

One tool – launching "infringement proceedings" against a recalcitrant state - has only been used once, in the case of Ilgar Mammadov vs Azerbaijan.

Amnesty International is urging all CoE member states to institute such an "infringement procedure" against Turkey to show their resolve against political persecution.

Another step would be for the secretary general – the political head of the Council of Europe – to launch a special inquiry into why these judgments are not being implemented.

This tool has only been used four times in the last 20 years, most recently against Azerbaijan again on Ilgar Mammadov.

The Parliamentary Assembly and monitoring mechanisms also have various tools at their disposal to exert pressure on a recalcitrant member state.

Member states will be aware that Turkey is one of the largest recipients of Council of Europe co-operation activities, amounting to millions of euros each year.

As such, they have a duty to ensure that their financial contributions do not make them complicit in shoring up a government that is undermining the whole human rights system and engaging in political persecution.

First-hand experience

I know first-hand how difficult it is to take a firm stance against a large member state that is in serious breach of its obligations. I was the Council of Europe's commissioner for human rights from 2012 to 2018.

As commissioner, I not only engaged in tough discussions with the Turkish authorities and wrote a number of highly critical reports, I tried to rally member states to take tougher measures to ensure that Turkey and other countries complied with their obligations.

There was often reluctance to pursue what were perceived as "confrontational" tactics.

But the Turkish authorities have shown that no amount of dialogue will free these men. They are innocent and should be released.

The time for delay and dithering is over. It is impossible to pretend that Turkey continues to cooperate and fulfil its obligations in good faith.