Turkey to not defend itself at the ECtHR on freedom of expression

Foreign Minister Ahmet Davutoğlu has said his ministry will work to change the perception of Turkey, which is the second most complained about country in the ECtHR. Constitutional amendments that will be voted on in a referendum on Sept. 12 will also serve to this aim. “We don't have to send a defense for every file, especially if they are related to freedom of expression,” Davutoğlu told NTV in an interview yesterday.

He added that the Ministry of Foreign Affairs, the Ministry of the Interior and the Ministry of Justice had launched an initiative to search for ways to decrease the number of files against Turkey at the ECtHR.

The second most complained about country in the ECtHR after Russia, most of the files against Turkey are related to fair trials and freedom of expression.

The Ministry of Foreign Affairs was strongly criticized recently over its defense at the ECtHR in the case of slain Armenian-Turkish journalist Hrant Dink.

Turkey's defense in the case, filed by Dink and taken over by his family after his assassination, claimed that Dink insulted Turkishness and used hate speech, that his articles provoked people and constituted a delictum publicum. The Turkish government also claimed that “if Dink had been genuinely and imminently threatened, he would have approached local authorities and asked for protection.” Furthermore, the Turkish government in its defense drew a parallel between Dink and a neo-Nazi leader, likening Dink's trial to the trial of neo-Nazi leader Michael Kühnen in Kühnen v. Federal Republic of Germany.

Davutoğlu repeated in the interview that he was personally disturbed by this defense. He said Turkey had suggested an amicable solution to the Dink family, but that it was not accepted. “I wish the family had a positive approach, but we, of course, we respect their decision,” he said.

After fierce discussion on Turkey’s defense in the Dink case, Turkey decided to change its attitude. Davutoğlu, Interior Minister Beşir Atalay and Justice Minister Sadullah Ergin recently had a meeting to this end. They decided that a committee tasked with finding a reasonable solution should be more active.

This committee comprises officials for the Ministry of Foreign Affairs, the Ministry of the Interior, the Ministry of Finance and the Ministry of Justice.

The committee does not have official status but aims to ensure coordination among the ministries regarding cases against Turkey at the ECtHR. Whenever the ECtHR rules that an amicable solution be found, this committee is involved. But as part of its duties it must obtain the opinion of related ministries, and this sometimes takes a long time. But from now on members of this committee will be able to make decisions on behalf of their ministries and suggest amicable solutions to complainants.

Davutoğlu added that he has asked that the cases against Turkey be classified as “procedural,” “matters of principle” and “related to law.”

Procedural files, he says, involve mistakes made during trials or unfair trials. Cases on matters of principle include files regarding freedom of expression, while those related to law concern articles in the law that have resulted in Turkey being convicted in the ECtHR. Davutoğlu said procedural cases mostly involve complaints of long trials. “Necessary measures should be taken to rectify this. These are related to procedures. There are hundreds of cases out there simply because justice was late, but we don’t want to put the blame on the judiciary. There are many problems over there, too,” he said.

He added that some of the cases regarding freedom of expression have been left over from the Feb. 28 process, a postmodern coup in 1997.

The foreign minister said Turkey will be chairing the Council of Europe (CoE) in the coming term and plans to work to reform the CoE, but first wants to change its image as a country facing many complaints at the ECtHR. “I don’t want to live the stress of being the president of the CoE as it goes through reform while at the same time be the minister of a country that is complained about,” he said.

He added that constitutional amendments which will be submitted to the public for approval on Sept. 12 include two regulations directly concerning this: namely, the right for individuals to petition the Constitutional Court and the establishment of an ombudsman’s office.

“We will also scan the law to find if any contradict with EU norms on freedom of expression and suggest changes to them,” he said.

Speaking to Today’s Zaman, Human Rights Association (İHD) President Öztürk Türkdoğan said the government’s decision to not send a defense to files on freedom of expression but to instead suggest an amicable solution means indirectly evading responsibility. “The important thing is to change laws that are obstacles to freedom of expression. Around 15 articles in the Counterterrorism Law and the Turkish Penal Code [TCK] must be changed. Also, the sprit of some of the laws is an obstacle. All this has to be discussed,” he said.