CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ ARTICLE 18 OF THE ECHR AS AN EARLY WARNING INSTRUMENT FOR THREATS… events after the 2016 coup attempt. The Court found that the predominant purpose of the set of measures undertaken by the Turkish Republic have been to remove the applicant from the political scene in Turkey and to silence him as one of the main opposition figures in the country. Court has explicitly acknowledged in Selahattin Demirtaş v. Turkey (No. 2) that ‘it is not only the applicant’ s rights and freedoms as an individual that could be said to be under threat but the whole democratic system itself ’. 85 Again court underlined like in Navalny v. Russia, that the authorities of Turkey were targeting the institution, namely: democratic order, the whole democratic system. In addition, the findings of the Venice Commission on the independence of the judicial system in Turkey, and more specifically those concerning the Supreme Council of Judges and Prosecutors (“the Supreme Council”), are also relevant to the Court’s examination under Article 18 of the Convention. “(…) the Venice Commission took the view that the composition of the Supreme Council would seriously endanger the independence of the judiciary, because it was the main self-governing body of the judiciary, overseeing appointments, promotions, transfers, disciplinary measures and the dismissal of judges and public prosecutors. It added that “[g]etting control over [the Supreme Council] thus means getting control over judges and public prosecutors, especially in a country where the dismissal of judges has become frequent and where transfers of judges are a common practice”. 86 The Court emphasized that the actions of Turkish authorities followed an ulterior political purpose of pressing free political debate and therefore undermining the democratic order in Turkey. The inferences drawn from this case support the argument that the judicial authorities have reacted severely to the conduct of the applicant as one of the opposition leaders, as well as to the conduct of the Peoples’ Democratic Party members of parliament. The continued pretrial detention of the applicant deprived thousand of voters of representation in the National Assembly, as well as considerably limited the scope of the free democratic discussions in the country. These factors allowed the Court to conclude that the purposes that the state authorities put forward in relation to the pre-trial detention of the applicant were cover for an ulterior political purpose which undermines the democratic order in Turkey. 87 In other words, the Court admitted the presence of mixed aims and assessed whether the illegitimate, political purpose was the predominant one. 88 The Court has explicitly acknowledged in Selahattin Demirtaş v Turkey (No. 2) that ‘it is not only the applicant’ s rights and freedoms as an individual that could be said to be under threat but the whole democratic system itself ’. 89 This emphasizes the systemic justice trend is dominant in the case law relating to Article 18. As it was confirmed by the 2012 Brighton Declaration, state parties to the ECHR must ensure full and effective (not only formal) implementation of the Convention obligations at national level. 90 Furthermore, State Parties to the Convention are required to make

85 Ibid. para 272. 86 Selahattin Demirtas v. Turkey (No. 2), supra note, para. 434.

87 Ibid., § 436. 88 Ibid., § 403. 89 Ibid. § 272. 90 Hight Level Conference on the Future of the European Court of Human Rights, Brighton Declaration, 19-20

141