Following a failed coup attempt and the declaration of a three month state of emergency, Turkey has submitted a formal notice to derogate from the European Convention on Human Rights.
What does this mean?
As we explained in this post, derogating from the European Convention on Human Rights is possible under the procedure contained in Article 15 of the Convention. Any measures taken which derogate from the Convention must be both necessary and proportionate, and in no circumstances can a state derogate from ‘non-derogable rights’, including Article 2 (the right to life), Article 3 (the prohibition of torture and inhuman or degrading treatment or punishment) and Article 7 (no punishment without law).
The formal notice of derogation was received by Secretary General of the Council of Europe, Thorbjørn Jagland. He said: “Anyone claiming to be the victim of a violation of the European Convention on Human Rights by Turkey as a result of new measures adopted under the state of emergency will have the right to bring their case to the European Court of Human Rights. The Court will then decide on whether the action in question is in conformity with the Convention”.
What has Turkey done since then?
Since announcing that it would derogate from the Convention, Turkish authorities have introduced a decree which authorises detentions without access to a judge for up to 30 days.
In a statement, the Council of Europe’s Commissioner for Human Rights, Nils Muižnieks, expressed concerns about this new decree. He states: “Derogations are not limitless: the European Court of Human Rights remains the ultimate authority to determine whether measures taken during the state of emergency are in conformity with the European Convention on Human Rights”. Measures derogating from the Convention may only be taken to the extent “strictly required by the exigencies of the situation”.
The European Court of Human Rights has, in the past, considered that detention without access to a judge left persons vulnerable to arbitrary interference with their right to liberty and freedom from torture.
What else might Turkey do?
In a post on the EJIL: Talk! blog, Martin Scheinin, Professor of International Law and Human Rights at the European University Institute, suggests that the most likely provisions which may become subject to derogations include:
- the right to liberty – interference with this can be seen already with the new decree and Professor Sheinin says it is not unthinkable that Turkey may also seek to create a category of security detention (that is, preventive detention) which would fall outside of the exhaustive list of permissible grounds for detention in the Convention;
- the right to a fair trial – perhaps by introducing special courts or even military courts; and
- the right to privacy and freedom of assembly and association – possibly through, for example, intercepting communications, blocking social media, controlling news outlets, dissolving associations and/or banning demonstrations or public meetings.
What about bringing back the death penalty? A great deal of concern has focused on signals that Turkey might consider reintroducing capital punishment. But, without wanting to dismiss the concerns, Professor Sheinin points out that neither the state of emergency nor derogation from the Convention could, legally speaking, act as a justification for bringing back the death penalty.