Ministry of Education and Science, Ukraine Youth and Sports Kharkov National University V.N.

Karazin Faculty of Law

Allow to do Thesis Conference: Head of the Department of Constitutional, municipal and international law affairs specialist, Associate Professor M.M. Voronov

The European Court of Human Rights, and the judgments against Turkey

Thesis on education and qualification level "LL.M." Student group UPM-51 Fahil A. Abdulkareem

Supervisor: Assistant professor of constitutional, municipal and international law, Ph.D., Associate professor Chervyatsova A.O

Kharkov - 2011
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Index Entry ……………………………………………………………………………………….……………………….... 3 Section 1 General theoretical description .......................................................................…... 4 1.1. Genesis of human rights …………………………………………………………………….……….. 4 1.2. Concept and classification of human rights …………………………………………….... 11 Conclusion ………………………………………………………………………………………………..……… 22 Section 2 The European Court of Human Rights ……………………………………..……….…………….. 24 2.1. History of establishment and development……………………………………………….. 24 2.2. Structure and procedures ……………………………………….……………………….......... 34 2.3. To contact the European Court of Human Rights Conditions of admissibility ………………………………………………………………………..…….. 41 Conclusion ……………………………………………………………………………………………….………. 47 Section 3 Decisions against Turkey …………………………………………….……….............................. 49 3.1. Cases involving violation Civic law and freedoms......................................... 52 3.2. Cases of political rights and freedoms.......................................................... 56 Analysis the Civil ECHR judgments against Turkey..........................................……. 71 Analysis the political ECHR judgment against Turkey…………………………………....... 77 Conclusion …………………………………………………………………………………..…………………. 103 Literatures Sources ……………………………………………………………………..…………….….. 104
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Entry Human rights are "rights and freedoms to which all humans are entitled." Proponents of the concept usually assert that everyone is endowed with certain entitlements merely by reason of being human. [1] Human rights are thus conceived in a universalist and egalitarian fashion. Such entitlements can exist as shared norms of actual human moralities, as justified moral norms or natural rights supported by strong reasons, or as legal rights either at a national level or within international law. However, there is no consensus as to the precise nature of what in particular should or should not be regarded as a human right in any of the preceding senses, and the abstract concept of human rights has been a subject of intense philosophical debate and criticism. The human rights movement emerged in the 1970s, especially from former socialists in eastern and western Europe, with major contributions also from the United States and Latin America. The movement quickly gelled as social activism and political rhetoric in many nations put it high on the world agenda. By the 21st century, Moyn has argued, the human rights movement expanded beyond its original anti-totalitarianism to include numerous causes involving humanitarianism and social and economic development in the Third World.

Many of the basic ideas that animated the movement developed in the aftermath of the Second World War, culminating in its adoption by the Universal Declaration of Human Rights in Paris by the United Nations General Assembly in 1948. While the phrase "human rights" is relatively modern the intellectual foundations of the modern concept can be traced through the history of philosophy and the concepts of natural law rights and liberties as far back as the city states of Classical Greece and the development of Roman Law. The true forerunner of human rights discourse was the concept of natural rights which appeared as part of the medieval Natural law tradition, became prominent during the Enlightenment with such philosophers as John Locke, Francis Hutcheson, and
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Jean-Jacques Burlamaqui, and featured prominently in the political discourse of the American Revolution and the French Revolution.

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Section 1 General theoretical description 1.1. Genesis of human rights

Human Rights – Definition Human rights are rights which some hold to be "inalienable" and belonging to all humans. They are necessary for freedom and the maintenance of a "reasonable" quality of life. If a right is inalienable, that means it cannot be bestowed, granted, limited, bartered away, or sold away (e.g., one cannot sell oneself into slavery). The issue of which rights are inalienable and which are not (or whether any rights are inalienable rather than granted or bestowed) is an ancient and ongoing controversy. Rights may also be non-derogable (not limited in times of National Emergency)—these often include the right to life, the right to be prosecuted only according to the laws that are in existence at the time of the offence, the right to be free from slavery, and the right to be free from torture. Universal Declaration of Human Rights In 1948, the United Nations created the Universal Declaration of Human Rights [4]. This Declaration introduced the notion in the public realm that rights are universal, inalienable, and inherent to the well-being of an individual. Specifically, the Declaration limits the behaviour of the state, which now has duties to the citizen (rights-duty duality). The roots of this notion can be drawn as far back as the Ancients (the role of the individual in the state) but the idea of civil and political rights stems from liberal freedoms advocated by John Stuart Mill in "On Liberty". Economic, Social and Cultural Rights can be traced back to Hegel's "Elements of the Philosophy of Right".

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The main content of the Declaration was later made into two legally binding Covenants: International Covenant on Civil and Political Rights (opened for signature 1966, entered into force March 23, 1976). And the International Covenant on Economic, Social and Cultural Rights (opened for signature 1966, entered into force January 3, 1976). Other Human Rights Conventions of note include: Convention on the Prevention and Punishment of the Crime to Genocide (entry into force: 1951), The Convention against Torture (entry into force: 1984),the International Convention on the Elimination of All Forms of Racial Discrimination (entry into force: 1969) ,The Convention on the Elimination of All Forms of Discrimination against Women (entry into force: 1981), UN Convention on the Rights of the Child (entry into force: 1989), and the Rome Statute for International Criminal Court (entry into force: 2002). Legal rights exist in virtue of positive law; moral rights are sufficiently independent of it to give a platform from which legal arrangements may be criticized. The basis for analysis is usually a fourfold distinction due to Wesley Hohfeld (1879-1918). A person A has a claim-right to x, and against person B, if B has a duty to refrain from interfering with A having or doing x, or even has a duty to assist A in obtaining x. A has a privilege (or liberty-right) to x, and against B, if B has no claim-right that A not do or obtain x. A has a power-right to x with regard to B, if A may render B liable to some status connected with x (a policeman obtains a power-right to enter my home, when he gets a warrant). A has an immunity-right to x against B, if A is free from B's power-right with regard to x. Questions arising include the relations between these families, and the nature of the ground in virtue of which any of these rights obtain.

Rights are frequently held to ‘trump’ other practical considerations, which requires seeing them as not themselves simply grounded in the interests of the right-holder, but perhaps existing in virtue of more central considerations of the duties we owe to each other. For Kant, the fundamental moral right is to be treated as an end in oneself, and reason alone justifies and grounds this right. The
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basic lists that have been drawn up of human rights to be respected by any legitimate constitution are surprisingly similar, suggesting a common conception of the conditions necessary for societies that accord human beings their full dignity or respect. This common core may be thought of as ‘natural rights’, although the term only makes good sense in a metaphysical or theological context in which nature is conceived of as capable of creating moral imperatives. Bentham is notorious for having opposed this, claiming that ‘natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense— nonsense upon stilts’ (Anarchical Fallacies, Art. ii). Nature, according to Bentham, provides a background against which we may wish that there were such things as rights, but they do not exist until law creates them. However, the term remains firmly at the centre of moral, political, and legal thought, particularly since rights are more attractive possessions than duties.

The political, social, and economic rights that each citizen has by virtue of simply being a citizen, and which are usually upheld by law. The meaning of the phrase is shaded by its commonest reference: to the civil rights of ethnic minorities in the United States. In this and similar usages, there is at least as much stress on the rights of a (minority) group as on the rights of the individual. Nevertheless the phrase is older and more general than the American Civil War. Any state which gives constitutional or legal guarantees to its citizens confers civil rights. However, constitutions sometimes state rights without giving the citizen any means of enforcing them against the state. In the French Revolution for instance, the Declaration of the Rights of Man and the Citizen (1789) was modelled on contemporary American attempts to guarantee certain individual freedoms, which appear in the US Constitution (1787) and its first ten amendments, collectively known as the bill of rights (1791). The French Declaration remains in force in that it was incorporated into the preamble to the constitutions of the Fourth and Fifth Republics. However, French practice, unlike American, gives the citizen no legal channel to claim the rights guaranteed in 1789.
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Both the French and the American declarations guarantee the citizen freedom of speech, assembly, and religion, and also offer procedural guarantees of fair trials and fair taxation. But the American Bill of Rights is part of the Federal Constitution; therefore from 1787 to 1865 it protected citizens only from the federal authorities, not from states or other levels of government. Indeed the Tenth Amendment, part of the Bill of Rights, specifies that ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’. Not until the end of the Civil War were any civil rights against the states guaranteed. Then, the Thirteenth Amendment (1865) outlawed slavery; the Fourteenth (1868) extended the rights guarantees in the original constitution and Bill of Rights to the states; and the Fifteenth (1870) forbade the United States or any state to restrict voting rights on the grounds of ‘race, color, or previous condition of servitude’. It is the programme of these three amendments that has come to summarize ‘civil rights’ in the United States.

Despite the unambiguous language of the three ‘Reconstruction Amendments’, civil rights were not protected for almost a century longer. In the immediate aftermath of the Civil War, those who had supported the ‘rebellion’ in the Southern states were disenfranchised, and the state governments were run by ‘carpet-baggers’: politicians from the North who packed their belongings in capacious carpet-bags and went to run the Southern states, supported by black votes. Their enemies alleged that they put as much into their carpet-bags to take north with them again. A bargain was struck in 1876 whereby the Republicans were allowed to claim victory in the disputed presidential election of that year on condition that Northern troops were withdrawn from the South. That marked the end for the carpet-baggers, but also for Southern blacks. A succession of discriminatory laws and practices in Southern state laws were upheld by the courts, in spite of their apparently blatant in- consistency with the Reconstruction Amendments. In the key case of Plessy v. Ferguson (1896), the Supreme Court
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upheld a Louisiana segregation law on the grounds that segregation does not mark ‘the colored race with a badge of inferiority’ unless ‘the colored race chooses to put that construction on it’. The judgment in Plessy v. Ferguson was not reversed until the ruling in Brown v. Board of Education of Topeka (1954) that separate facilities were inherently unequal. Brown and Baker v. Carr (1962, enforcing equal-sized electoral districts) were the most important of a series of Supreme Court judgments that restored civil rights in law to what a non-lawyer would believe the Reconstruction Amendments meant. These cases also helped to solidify the doctrine of the incorporation of the Bill of Rights into the Fourteenth Amendment, thereby extending its guarantees to the state and local levels.

But the Supreme Court commands no armies. Civil rights could not become effective until both the executive and the legislature had also put their weight behind them. The executive did so by sending federal forces to the South to enforce desegregation; the legislature did so by passing, especially, the Civil Rights Act 1964 and the Voting Rights Act 1965. Voting rights have become selfenforcing: now that black citizens have the vote, politicians have to balance their votes against those of white supremacists. Voting rights are now safe, but not all civil rights are. Some parts of the Deep South remain segregated. A difficult problem in civil rights is whether all minorities can, or should, receive equal protection. In 1978 a would-be student, Alan Bakke, complained that his Fourteenth Amendment rights had been violated because he had been refused a place whereas minority ethnic group students with poorer qualifications had gained places in the quota which had been set aside for them. In Regents of the University of California v. Bakke (1978) a divided Supreme Court held that Bakke had been unlawfully excluded but that affirmative action to redress past racial discrimination was not unlawful. Affirmative action continues, notably in higher education, but much more cautiously than before Bakke. In the United Kingdom, the currency of the term ‘civil rights’ is largely due to the Northern Ireland Civil Rights Association, which copied American methods in its
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protests against religious discrimination in the 1960s. Unlike their American counterparts, the Northern Ireland protesters had no constitutionally guaranteed rights, because nobody in the United Kingdom then did. However, UK legislation now bans discrimination on the grounds of race, sex, or (in Northern Ireland only) religion. Thus citizens may enforce some rights against the state, an example being the embarrassment of the UK armed services in the 1990s at having to pay substantial sums in compensation to servicewomen who had been unlawfully dismissed on becoming pregnant. The European Convention on Human Rights has now been incorporated into UK law.

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1.2. Concept and classification of human rights

Origins of rights Human rights are typically divided into two categories: negative human rights (rights to be free from) and positive (rights to) although other categorisations exist. Negative human rights follow mainly from the Anglo-American legal tradition, and are rights which denote actions that a government should not take. These are codified in the United States Bill of Rights, the English Bill of Rights and the Canadian Charter of Rights and Freedoms and include freedoms of speech, religion and assembly. Positive human rights follow mainly from the Rousseauian Continental European legal tradition, and rights that the state is obligated to protect and provide. Examples of such rights (not all are universally agreed upon) include: the rights to education, to a livelihood, and legal equality. Positive rights have been codified in the Universal Declaration of Human Rights and in many 20th century constitutions. The origin of modern positive rights in international law may be traced to the creation of the International Labour Organization in 1919 as a Western response to the socialist ideology of the Russian Revolution of 1917. A categorisation offered by KarelVasak is the three generations of human rights: first-generation civil and political rights (right to life and political participation), second-generation economic, social and cultural rights (right to subsistence) and third-generation solidarity rights (right to peace, right to clean environment). Out of these generations, the third generation is the most debated and lacks both legal or political recognition. Some theorists discredit these divisions by claiming that rights are interconnected. Arguably, for example, basic education is necessary for the right to political participation. Aside from the international legal human rights framework, there are several possible sources of rights thinking. One justification stems from natural law. The
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theory espoused by the US Declaration of Independence and ingrained in AngloAmerican legal thought is that rights arise from a divine Creator, and are thus a part of a moral philosophy. Religious societies tend to try to justify human rights through religious arguments. For example, liberal movements within Islam have tried to use the story of Adam in the Qur'an to support human rights in a Muslim context. A Negative right is a right, either moral or decreed by law, to not be subject to an action of another (usually abuse or coercion) so that restraint is incumbent upon another, as opposed to a positive right which is a right to be provided with something by the positive action of another. The former proscribes action, while the latter prescribes action. One example of a negative right is the First Amendment of the United States Constitution, which makes it unlawful for anyone to abridge the speech of another. A law that would require another to provide him with a microphone would codify a positive right. The First Amendment to the United States Constitution is a part of the Bill of Rights. Textually, it prevents the U.S. Congress from infringing on six rights. These guarantees were that the Congress would not:

Establish a state religion or prefer certain religion (the "Establishment Clause"); Prohibit the free exercise of religion (the "Free Exercise Clause"); Infringe the freedom of speech; Infringe the freedom of the press; Limit the right to assemble peaceably; Limit the right to petition the government for a redress of grievances. The First Amendment, along with the rest of the Bill of Rights, was proposed by Congress in 1789, to be ratified by the requisite number of states in 1791. As with
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the remaining Amendments of the Bill of Rights, the First Amendment was passed in order to answer protestations that the newly created Constitution did not include sufficient guarantees of civil liberties.

The First Amendment only explicitly disallows any of the rights from being abridged by Congress. Over time, however, the courts held that this extends to the executive and judicial branches. The Court has held that the Fourteenth Amendment incorporates the First Amendment against the actions of the states. The Supreme Court has made numerous other changes to the 1791 First Amendment. These changes, documented by Fordham Law School graduate Thomas Ladanyi, occupy over three pages of text. These changes are identified in Barry Krusch's online book Would The Real First Amendment Please Stand Up? (referenced below). Mr. Krusch's book also offers extensive commentary on many of the Supreme Court decisions discussed herein, and the extent to which they conflict with (and therefore override) the text of the 1791 First Amendment. A Positive right is a right, either moral or decreed by law, to be provided with something so that it is incumbent upon another to act, as opposed to a negative right which is a right to not be subject to the action of another. The former prescribes action, while the latter proscribes action. For example, a right to an education is a positive right because education must be provided by a series of positive actions by others. A school system, teachers and materials must be actively provided in order for such a right to be fulfilled. The right to be secure in one's home, however, is a negative right. In order for it to be fulfilled, others need take no particular action but merely refrain from certain actions, specifically trespassing or breaking into the home in question. Different political philosophies have different opinions concerning positive and negative rights. Under socialism and social democracy, positive rights are considered an essential part of the social or governmental contract: something that society promises to all its members. Under these philosophies there need be

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no particular distinction between positive or negative rights, rather they tend to be all listed together.

Libertarians and other critics of the notion of positive rights hold that positive rights could only be guaranteed to any one person by abridging the negative rights of others. For instance, if a citizen had the right to a house, this would imply that if he did not produce or obtain a house for himself that others would be compelled to provide one for him. This is not an ethical compulsion (others should provide a house out of charity) but rather political compulsion: the state must require others to provide a house (usually by taxation). This political compulsion, they hold, necessarily contravenes the existence of a (negative) right to private property. If one person's property may rightly be taken to pay for someone else's house, then the first person cannot be said to have a right to that property. Many positive rights are economic in nature: they involve the rights-holder being assured of the provision of some economic good such as housing, a job, a pension, or medicine. Under most systems of social democracy, these are provided under some manner of public welfare system, in which public funds are used to establish public housing, works programs, social security, and the like. In contrast, negative rights are usually not directly economic in nature, although the right to security in private property is considered an economic negative right in that it entails freedom from theft or state confiscation. Other negative rights include freedom of speech, freedom of the press, freedom of religion, the right to bear arms, freedom from violent crime and freedom from involuntary servitude. The concept of a positive right is very similar to Isaiah Berlin's concept of Positive Liberty (an idea he was strongly critical of). The philosophical concept of negative liberty is the absence of coercion from others. In this negative sense, one is considered free to the extent to which no person or person interferes with his or her activity. According to Thomas Hobbes, for example, "a free man is he that... is not hindered to do what he hath the will to do."
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The distinction between negative liberty and positive liberty was drawn by Isaiah Berlin in his lecture entitled "Two Concepts of Liberty." According to Berlin, the distinction is deeply embedded in the political tradition: the notion of negative liberty being associated most strongly with the classical English political philosophers (e.g. Locke, Hobbes, Smith, and Mill) and positive liberty with thinkers such as Hegel, Rousseau, Herder, and Marx. This usage of negative liberty has several noteworthy aspects. First, negative liberty defines a realm or "zone" of freedom. In Berlin's words, "liberty in the negative sense involves an answer to the question "What is the area within which the subject -- a person or group of persons -- is or should be left to do or be what he is able to do or be, without interference by other persons." Some philosophers have disagreed on the extent of this realm while accepting the main point that liberty defines that realm in which one may act unobstructed by others. Second, the restriction implicit in negative liberty is imposed by person or persons and not due to causes such as nature, lack, or incapacity. Helvetius expresses this point clearly: "The free man is the man who is not in irons, nor imprisoned in a gaol, nor terrorized like a slave by the fear of punishment...it is not lack of freedom not to fly like an eagle or swim like a whale."

The dichotomy of positive and negative liberty is considered specious by political philosophers in traditions such as libertarian socialism, social democracy, and marxism. Some of them argue that positive and negative liberty are indistinguishable in practice, while others claim that one kind of liberty cannot exist independently of the other.

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Positive liberty, an idea that was first expressed and analyzed as a separate conception of liberty by John Stuart Mill but most notably described by Isaiah Berlin, refers to the ability to act to fulfill one's own potential, as opposed to negative liberty, which refers to freedom from the interference of others in one's affairs. The idea of positive liberty is often emphasized by those on the left-wing of the political spectrum, such as Marxists, whereas negative liberty is most important for those who lean towards right-wing libertarianism. Positive liberty is often described as freedom to achieve certain ends, while negative liberty is described as freedom from external coercion. Many anarchists, and others considered to be on the left-wing, see the two concepts of positive and negative liberty as interdependent and thus inseparable. Berlin himself was deeply suspicious of the concept of positive liberty, noting that totalitarian ideologies such as Stalinist Communism claimed to be the true deliverers of self-mastery or self-realization, even though the individual was by no means free. Berlin argued that the concept of positive liberty could lead to a situation where the state forced upon people a certain way of life, because the state judged that it was the most rational course of action, and therefore, was what a person should desire, whether or not people actually did desire it. Berlin said:

Once I take this view, I am in a position to ignore the actual wishes of men or societies, to bully, oppress, torture in the name, and on behalf, of their "real" selves, in the secure knowledge that whatever is the true goal of man ... must be identical with his freedom.

Defenders of positive liberty say that there is no need for it to have such totalitarian undertones, and that there is a great difference between a government providing positive liberty to its citizens and a government presuming to make their decisions for them. For example, they argue that any democratic
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government upholding positive liberty would not suffer from the problems Berlin described, because such a government would not be in a position to ignore the wishes of people or societies. Also, many on the left see positive liberty as guaranteeing equal rights to certain things like education and employment, and an important defense against discrimination—here, positive liberty could be the right of (for example) a woman to be considered on equal terms with a man in a job interview. Positive liberty can also be seen as the ability to participate in the process of government, though this idea is also open to criticism, since minorities may (for example) have as much right to vote as anyone else, and therefore have this positive liberty.

United States Bill of Rights (66) The Bill of Rights is the name given to the first ten amendments to the United States Constitution. When the Constitution was submitted to the state legislatures for ratification, many of its opponents claimed that the Constitution did not include a bill of rights because the document was an aristocratic scheme to remove the rights of Americans. Supporters, known as Federalists, assured Americans that a Bill of Rights would be added by the First Congress. Origin After the Constitution was ratified, the first U.S. Congress met in Federal Hall in New York City. Most of the delegates agreed that a Bill of Rights was needed and most of them believed that the same rights should be enumerated. Controversy The idea of adding a bill of rights to the constitution was originally controversial. The idea was that the constitution, as written, did not specifically enumerate or protect the rights of the people, and as such needed an addition to ensure such protection. However, many Americans at the time opposed the bill of rights: If such a bill was created, many people feared that this would later be interpreted
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as a list of the only rights that people had. In other words, a list of rights would be the only rights one had, and if they were interpreted narrowly, the existence of such a bill of rights could effectively constrain the liberty of the people instead of ensuring it. For example, Alexander Hamilton opposed any such bill of rights, writing:

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the Barons, sword in hand, from king John....It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. "We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.... I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. (Alexander Hamilton, Federalist, no. 84, 575-581, 28 May 1788)
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Supporters of the bill of rights argued that a list of rights would and should not be interpreted as exhaustive; i.e. that these rights were examples of important rights that people had, but that people had other rights as well. People in this school of thought were confident that the judiciary would interpret these rights in an expansive fashion.

Drafting the Bill of Rights

The task of drafting the Bill of Rights fell to James Madison, who based his work on George Mason's earlier work, Virginia Declaration of Rights. It had been decided earlier that the Bill of Rights would be added to the Constitution as amendments (the list of rights was not included in the text of the Constitution because it was feared that changing the document's text would necessitate the rather painful process of re-ratifying the Constitution).

The Bill of Rights includes rights such as freedom of speech, of press, of religion, and of assembly. It also includes a clause assuring the American people that the Bill of Rights should not be interpreted as a comprehensive list of all rights belonging to Americans, but rather a list of the most important rights. Twelve amendments were originally proposed in 1789, but two failed to be ratified by the states at the same time as the remaining ten. These two amendments, originally numbered first and second, were drafted and submitted as:

Article the first ... After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred
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Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons. Article the second ... No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. Several important public officials, including James Madison and United States Supreme Court Justice Joseph Story, retained the confusing practice of referring to each of the ten amendments in the Bill of Rights by the enumeration found in the first draft.

Passing the Bill of Rights

The Bill of Rights passed the House easily in 1789. When it was sent to the Senate, an amendment was removed that forbade states from interfering with the rights of the people. Since records of the meetings of the Senate are not available to the public, no one can say for sure why this amendment was removed (later, in 1868, the Fourteenth Amendment would be passed establishing the principle that states may not interfere with the rights granted to citizens by the federal government).

On November 20 that year, New Jersey became the first state in the newlyformed Union to ratify these amendments. Other states followed, and the last ten of the twelve amendments—now designated as the First through Tenth Amendments—became law on December 15, 1791 when they were ratified by the Virginia legislature. These ten amendments quickly became known as the Bill of Rights. The second proposed amendment ("Article the second" in as presented
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to the states) was finally ratified in 1992 as the Twenty-seventh Amendment to the Constitution; it restricts the ability of Congress to raise its own pay. The first proposed amendment ("Article the first" in as presented to the states) is theoretically still pending before the states, but unlikely to ever be fully ratified. That amendment would regulate the method of determining the size of the United States House of Representatives. Perhaps unaware—given the primitive nature of communications in the 1700s—that Virginia's approval six months earlier had made ten of the package of twelve already part of the Constitution, lawmakers in Kentucky ratified the entire set of twelve in June of 1792 during that commonwealth's initial month of statehood. In the first decades of the Republic the Bill of Rights was considered to apply to the federal government, not the state governments. Thus, states had established churches up until the 1820's, and Southern states, beginning in the 1830's, could ban abolitionist propaganda. In the case of Barron v. Baltimore, the Supreme Court specifically ruled that the Bill of Rights provided "security against the apprehended encroachments of the general government - not against those of local governments". This began to change in 1925 with the Supreme Court case of Gitlow v. New York. In that case, the Court ruled that the Fourteenth Amendment (which had been adopted in 1868) made certain portions of the Bill of Rights applicable against the states. The Supreme Court used the Gitlow case as precedent for a series of decisions that made most of the provisions of the first eight amendments applicable to the states. It is controversial whether the Twenty-seventh Amendment should be considered a part of the Bill of Rights; it is listed below only for convenience. The original copy of the Bill of Rights, which contains the text of all twelve proposed amendments, can be seen by the public today at the National Archives in Washington, DC.

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Conclusion The belief that everyone (3), by virtue of her or his humanity, is entitled to certain human rights is fairly new. Its roots, however, lie in earlier tradition and documents of many cultures; it took the catalyst of World War II to propel human rights onto the global stage and into the global conscience.

Throughout much of history, people acquired rights and responsibilities through their membership in a group – a family, indigenous nation, religion, class, community, or state. Most societies have had traditions similar to the "golden rule" of "Do unto others as you would have them do unto you." The Hindu Vedas, the Babylonian Code of Hammurabi, the Bible, the Quran (Koran), and the Analects of Confucius are five of the oldest written sources which address questions of people’s duties, rights, and responsibilities. In addition, the Inca and Aztec codes of conduct and justice and an Iroquois Constitution were Native American sources that existed well before the 18th century. In fact, all societies, whether in oral or written tradition, have had systems of propriety and justice as well as ways of tending to the health and welfare of their members. Documents asserting individual rights, such the Magna Carta (1215), the English Bill of Rights (1689), the French Declaration on the Rights of Man and Citizen (1789), and the US Constitution and Bill of Rights (1791) are the written precursors to many of today’s human rights documents. Yet many of these documents, when originally translated into policy, excluded women, people of color, and members of certain social, religious, economic, and political groups. Nevertheless, oppressed people throughout the world have drawn on the principles these documents express to support revolutions that assert the right to self-determination. Contemporary international human rights law and the establishment of the United Nations (UN) have important historical antecedents. Efforts in the 19th century to prohibit the slave trade and to limit the horrors of war are prime examples. In 1919, countries established the International Labor Organization
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(ILO) to oversee treaties protecting workers with respect to their rights, including their health and safety. Concern over the protection of certain minority groups was raised by the League of Nations at the end of the First World War. However, this organization for international peace and cooperation, created by the victorious European allies, never achieved its goals. The League floundered because the United States refused to join and because the League failed to prevent Japan’s invasion of China and Manchuria (1931) and Italy’s attack on Ethiopia (1935). It finally died with the onset of the Second World War (1939). The idea of human rights emerged stronger after World War II. The extermination by Nazi Germany of over six million Jews, Sinti and Romani (gypsies), homosexuals, and persons with disabilities horrified the world. Trials were held in Nuremberg and Tokyo after World War II, and officials from the defeated countries were punished for committing war crimes, "crimes against peace," and "crimes against humanity."

Governments then committed themselves to establishing the United Nations, with the primary goal of bolstering international peace and preventing conflict. People wanted to ensure that never again would anyone be unjustly denied life, freedom, food, shelter, and nationality. The essence of these emerging human rights principles was captured in President Franklin Delano Roosevelt’s 1941 State of the Union Address when he spoke of a world founded on four essential freedoms: freedom of speech and religion and freedom from want and fear (See Using Human Rights Here & Now). The calls came from across the globe for human rights standards to protect citizens from abuses by their governments, standards against which nations could be held accountable for the treatment of those living within their borders. These voices played a critical role in the San Francisco meeting that drafted the United Nations Charter in 1945.

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Section 2 The European Court of Human Rights 2.1. History of establishment and development The European Court of Human Rights was established on 3 September 1953. Located in Strasbourg, the European Court of Human Rights has jurisdiction over COE member states that have opted to accept the Court's optional jurisdiction. Once a state has done so, all Court decisions regarding it are binding. Judges are elected to the Court by the Council of Europe's Parliamentary Assembly. The original structure of the Court and mechanism for handling cases provided for a two-tier system of rights protection, which included the European Commission of Human Rights (now obsolete) as well as the Court itself. The dichotomy between the two institutions initially worked well since the Court dealt with a relatively small caseload. However, the caseload facing the court grew from 16 cases between 1960 and 1975 to 119 cases in 1997 alone. On 1 November 1998, Protocol 11 of the European Convention on Human Rights came into force, eliminating the Commission of Human Rights as a new European Court of Human Rights and replacing the former system. The Court accepts applications of instances of human rights violations from individuals as well as states. However, it is rare for a state to submit allegations against another state, unless the violation is severe. In order for an application to be accepted by the Court, all domestic legal remedies available to the applicant must have been exhausted. Additionally:

•A non-anonymous petitioner must bring the case to the Court within six months of the final domestic ruling on it. •The issue must be a violation of a guarantee set forth in the European Convention.

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•The applicant must be a "victim." (However, terms specify that one does not have to have been directly persecuted to be considered a victim.) •Petitioners may not repeat the substance of a previous petition. The Court then holds a public hearing to determine if there has been a violation to the Convention. The Court normally sits as a Chamber of nine judges (expanded from seven originally), including one from the country in question, but in rare instances can seat a Grand Chamber consisting of 21 (formerly 17) judges. If the application is declared admissible, the Court advocates reaching a friendly settlement, which ranges from a change in the law(s) to compensation. Chamber judgments may be appealed to the Grand Chamber until they become final after three months; Grand Chamber judgments are always final. All judgments are binding under international law, and may be delivered in court or in writing. Once the Court considers a case a violation, states are obliged to prevent similar violations from occurring in the future. "Just satisfaction" can be awarded to victims, including compensation paid by the state at fault. The Committee of Ministers of the Council of Europe monitors the Court's judgments to ensure compensation is paid and to assist victims by reopening proceedings, lifting bans, striking a police record, and granting residence. The Committee of Ministers also sees to it that the requisite changes are made following a judgment, such as changes in legislation, case law, rules, and practices, building prisons or the appointment of new domestic judges.

European Commission on Human Rights

Although the European Commission on Human Rights became obsolete in 1998 with the restructuring of the Court of Human Rights, it held an important role in assisting the European Court of Human Rights from 1953 to 1998. Commission members were elected by the Committee of Ministers and would
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hold office for six years (during which time they were to act independently, without allegiance to any state). Their role was to consider if a petition was admissible to the Court. If so, the Commission would examine the petition to determine the facts of the case and look for parties that could help settle the case in a friendly manner. If a friendly settlement could not take place, the Commission would issue a report on the established facts with an opinion on whether or not a violation had occurred. A Committee of three people determined the admissibility of a petition. For difficult decisions, however, a Chamber consisting of seven people handled it.

European Social Charter

The European Social Charter, adopted in 1961 and monitored by the European Committee of Social Rights, guarantees economic, social and cultural rights, such as the rights to housing, health, education, employment, social protection, movement of persons, and non-discrimination. A new version of the Charter (revised in 1996) came into force in 1999.

European Committee of Human Rights The European Committee of Social Rights (ECSR) is composed of independent experts serving six-year terms that are renewable for one term. States must submit annual reports of how they have followed Charter standards. The Committee reviews these and then publishes decisions known as "Conclusions." If a state ignores a Conclusion of a violation, the Committee of Ministers addresses the state, asking it to rectify the problem, either by changing a law or a practice (or both).

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An Additional Protocol to the European Social Charter entered into force in 1998 providing an opportunity for workers' groups and NGOs to lodge collective complaints. The Committee examines collective complaints considered admissible. These must include:

1. details of the organization and individual submitting the complaint; 2. the state against which the complaint has been made; 3. the aspect of the Charter that has allegedly been violated; 4. the actual violation.

Next, there is a written exchange between countries, and in some cases, a public hearing. The Committee then makes a decision on the case and forwards it to the two parties; it is published four months later. Finally, the Committee adopts a resolution regarding the issue and may publish recommendations. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

The European Convention for the Prevention of Torture was adopted in 1987 and entered into force in 1989 and was amended by Protocol 1 and 2. The Convention created the European Committee for the Prevention of Torture, to monitor the treaty. By 2003, 44 members of the COE had ratified the treaty. Protocol No. 1, which entered into force in 2002, allows any non-COE member state to become a party to the Convention.

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The Convention for the Protection of Human Rights and Fundamental Freedoms was drafted by the member States of the Council of Europe. It was opened for signature in Rome on 4 November 1950 and came into force in September 1953. Taking as their starting-point the 1948 Universal Declaration of Human Rights, the framers of the Convention sought to pursue the aims of the Council of Europe through the maintenance and further realization of human rights and fundamental freedoms. The Convention represented the first step towards the collective enforcement of certain of the rights set out in the Universal Declaration. In addition to laying down a catalogue of civil and political rights and freedoms, the Convention set up a mechanism for the enforcement of the obligations entered into by Contracting States. Three institutions were entrusted with this responsibility: the European Commission of Human Rights (set up in 1954), the European Court of Human Rights (set up in 1959) and the Committee of Ministers of the Council of Europe, the latter being composed of the Ministers for Foreign Affairs of the member States or their representatives.

There are two types of application under the Convention, inter-State and individual. Applications of the first type have been rare. Prominent examples are the case brought by Ireland against the United Kingdom in the 1970 relating to security measures in Northern Ireland, and several cases brought by Cyprus against Turkey over the situation in northern Cyprus. Two inter-State cases are currently pending before the Court, Georgia v. Russia (nos. 1 and 2). The right of individual petition, which is one of the essential features of the system today, was originally an option that Contracting States could recognize at their discretion. When the Convention came into force, only three of the original ten Contracting States recognized this right. By 1990, all Contracting States (twenty-two at the time) had recognized the right, which was subsequently accepted by all the central and east European States that joined the Council of Europe and ratified the Convention after that date. When Protocol No. 11 took effect in 1998, recognition of the right of individual petition became compulsory.
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In the words of the Court, “individuals now enjoy at the international level a real right of action to assert the rights and freedoms to which they are directly entitled under the Convention” this right applies to natural and legal persons, groups of individuals and to .non-governmental organizations.

The original procedure for handling complaints entailed a preliminary examination by the Commission, which determined their admissibility. Where an application was declared admissible, the Commission placed itself at the parties’ disposal with a view to reaching a friendly settlement. If no settlement was forthcoming, it drew up a report establishing the facts and expressing an opinion on the merits of the case. The report was transmitted to the Committee of Ministers.

Where the respondent State had accepted the compulsory jurisdiction of the Court (this too having been optional until Protocol No. 11), the Commission and/or any Contracting State concerned by the application had a period of three months following the transmission of the report to the Committee of Ministers within which to bring the case before the Court for a final, binding adjudication including, where appropriate, an award of compensation. Individuals were not entitled to bring their cases before the Court until 1994, when Protocol No. 9 came into force and amended the Convention so as to enable applicants to submit their case to a screening panel composed of three judges, which decided whether the Court should take it up. If a case was not referred to the Court, the Committee of Ministers decided whether there had been a violation of the Convention and, if appropriate, awarded “just satisfaction” (compensation) to the victim. The Committee of Ministers also had responsibility for supervising the execution of the Court’s judgments. When it came into force on 1 November 1998, Protocol No. 11 made the Convention process wholly judicial, with the Commission’s function of screening applications transferred to the Court itself,
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whose jurisdiction became compulsory. The Committee of Ministers’ adjudicative function was abolished.

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The Protocols to the Convention

Since the Convention’s entry into force, fourteen Protocols have been adopted. Protocols Nos. 1, 4, 6, 7, 12, and 13 added further rights and liberties to those guaranteed by the Convention. Protocol No. 2 conferred on the Court the power to give advisory opinions, a little-used function that is now governed by Articles 47 to 49 of the Convention as noted. Above, Protocol No. 9 enabled individuals to seek referral of their case to the Court. Protocol No. 11 transformed the supervisory system, creating a single, fulltime Court to which individuals have direct recourse. Further amendments to the system are contained in Protocol No. 14 (see below). The other Protocols, which concerned the organization of and procedure Before the Convention institutions, are of no practical importance today.

Mounting pressure on the Convention system

In the early years of the Convention, the number of applications lodged with the Commission was comparatively small, and the number of cases decided by the Court was much lower again. This changed in the 1980s, by which time the steady growth in the number of cases brought before the Convention institutions made it increasingly difficult to keep the length of proceedings within acceptable limits. The problem was compounded by the rapid increase in the number of Contracting States from 1990 onwards, rising from twenty-two to the current total of forty-seven. The number of applications registered annually with the Commission increased from 404 in 1981 to 4,750 in 1997, the last full year of operation of the original supervisory mechanism. By that same year, the number of unregistered or provisional files opened annually in the Commission had risen
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to over 12,000. Although on a much smaller scale, the Court’s statistics reflected a similar story, with the number of cases referred annually rising from 7 in 1981 to 119 in 1997. At the end of 2009, 119,300 allocated applications were pending before the Court. Four States account for over half (55.7%) of its docket: 28.1% of the cases are directed against Russia, 11% of the cases concern Turkey, 8.4% Ukraine and 8.2% Romania.

In 2009, the highest number of judgments concerned Turkey (356), Russia (219), Romania (168) and Poland (133). These four States accounted for more than half (52%) of all judgments. On the other hand, half of the Contracting States had less than 10 judgments against them during the year. The number of requests for interim measures (Rule 39 of the Rules of Court), though lower than in 2008, remained very high, with 2,399 requests received in 2009, of which 654 were granted.

10. It has long been evident that the number of applications to the Court is beyond the institution’s capacity, leading to excessive delays for many applicants. It was for this reason that the Contracting States drafted Protocol No. 14, which was opened for signature in May 2004. The contents of this instrument are summarised below. Primarily it aims to augment the capacity of the Court by introducing smaller judicial formations, thereby freeing up more judicial time to devote to the cases of greater legal importance or urgency. It was estimated at the time that the effect of these changes would be an increase in the Court’s output of approximately 20-25%. In the two years following the Protocol’s opening for signature, it was ratified by all of the Contracting States but one, Russia. The matter remained pending within the Duma for several years and was resolved very recently, when the Duma gave its approval to the Protocol on 15 January 2010. The Protocol was ratified on 18 February 2010 and entered into
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force on 1 June 2010 in respect of Russia and the forty-six other States Parties to the Convention.

In fact, two of the reforms contained in Protocol No. 14 have been provisionally applied by the Court since the middle of 2009. At the ministerial session of the Committee of Ministers held in Madrid in May, the Contracting States reached a consensus (the Madrid Agreement) whereby they could consent to (i) the application of the single-judge procedure to cases taken against them and (ii) the giving of judgments by three-judge Committees in cases that can be decided on the basis of well-established case-law. Simultaneously, Protocol No. 14 bis was adopted, containing the same two measures. By the end of 2009, eighteen Contracting States had accepted these procedures by one or the other means. Further details about their operation are given below.

The statistics set out above make clear the tremendous strain on the Convention system, and the critical situation of the Court at the present time. Unless there is rapid action to reform and strengthen the system, the situation will continue to deteriorate. Speaking at the ceremony to mark the 50th anniversary of the Court in January, the President of the Court proposed the convening of a high-level conference on the future of the European Convention on Human Rights. The proposal was taken up by the Swiss government as the principal event of its chairmanship of the Committee of Ministers (November 2009-May 2010), and the conference took place in Interlaken on 18-19 February 2010.

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2.2. Structure and procedures Organisation of the Court

The provisions governing the structure and procedure of the Court are to be found in Section II of the Convention (Articles 19-51), now to be read in the light of the Madrid Agreement or Protocol No. 14 bis. The Court is composed of a number of judges equal to that of the Contracting States. Judges are elected by the Parliamentary Assembly of the Council of Europe, which votes on a shortlist of three candidates put forward by the States. The term of office is six years, and judges may be re-elected. Their terms of office expire when they reach the age of 70. Judges remain in office until replaced. Judges sit on the Court in their individual capacity and do not represent any State. They cannot engage in any activity which is incompatible with their independence or impartiality, or with the demands of full-time office. These points are developed in the resolution on judicial ethics adopted by the Court in 2008.

The Plenary Court has a number of functions that are stipulated in the Convention. It elects the office holders of the Court, namely, the President, the two Vice-Presidents (who also preside over a Section) and the three other Section Presidents. In each case, the term of office is three years. The Plenary Court also elects the Registrar and Deputy Registrar. The Rules of Court are adopted and amended by the Plenary Court. It also determines the composition of the Sections.

Under the Rules of Court, every judge is assigned to one of the five Sections, whose composition is geographically and gender balanced and takes account of the different legal systems of the Contracting States. The composition of the Sections is changed every three years.
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The great majority of the judgments of the Court are given by Chambers. These comprise seven judges and are constituted within each Section. The Section President and the judge elected in respect of the State concerned sit in each case. If the respondent State in a case is that of the Section President, the VicePresident of the Section will preside. In every case that is decided by a Chamber, the remaining members of the Section who are not full members of that Chamber sit as substitute members.

Committees of three judges are set up within each Section for twelve-month periods. Their function is to dispose of applications that are clearly inadmissible. Also, as mentioned above, these Committees can now give judgment in cases that can be decided on the basis of well-established case-law, where the respondent State has accepted this procedure. The single-judge formation was introduced on 1 July 2009, and, in relation to those States that have accepted it, has taken over the function previously exercised by Committees. The President of the Court decides on the number of judges to be appointed as single judges, the duration of the appointment and the Contracting State in relation to which they will operate [1]. As of 1 January 2010, seventeen members of the Court have been appointed to this function. They continue to carry out their normal duties within their Sections. Each single judge is assisted by a non-judicial rapporteur. These are appointed by the President of the Court from among experienced Registry lawyers and operate under his authority.

The Grand Chamber of the Court is composed of seventeen judges, who include, as ex officio members, the President, Vice-Presidents and Section Presidents. The Grand Chamber deals with cases that raise a serious question of interpretation or application of the Convention, or a serious issue of general importance. A
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Chamber may relinquish jurisdiction in a case to the Grand Chamber at any stage in the procedure before judgment, as long as both parties consent. Where judgment has been delivered in a case, either party may, within a period of three months, request referral of the case to the Grand Chamber. Such requests are considered by a panel of five judges, which includes the President of the Court. Where a request is granted, the whole case is reheard.

Procedure before the Court General Any Contracting State (State application) or individual claiming to be a victim of a violation of the Convention (individual application) may lodge directly with the Court in Strasbourg an application alleging a breach by a Contracting State of one of the Convention rights. A notice for the guidance of applicants and the official application form are available on the Court’s website. They may also be obtained directly from the Registry. The procedure before the Court is adversarial and public. It is largely a written procedure [1]. Hearings, which are held only in a very small minority of cases, are public, unless the Chamber/Grand Chamber decides otherwise on account of exceptional circumstances. Memorials and other documents filed with the Court’s Registry by the parties are, in principle, accessible to the public.

Individual applicants may present their own cases, but they should be legally represented once the application has been communicated to the respondent State. The Council of Europe has set up a legal aid scheme for applicants who do not have sufficient means. The official languages of the Court are English and French, but applications may be submitted in one of the official languages of the Contracting States. Once the
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application has been formally communicated to the respondent State, one of the Court’s official languages must be used, unless the President of the Chamber/Grand Chamber authorises the continued use of the language of the application. Recent Development of ECHR Crafted in the wake of World War II, the European Convention on Human Rights (“ECHR”) was the first regional expression of fundamental human rights protection as asserted in the United Nations’ 1948 Universal Declaration of Human Rights (“UDHR”). Its codified rights, primarily civil and political rights such as the right to life and the right to be free from torture, were to be protected by the European Commission on Human Rights (“the Commission”), (now defunct) and its supervisory body, the European Court of Human Rights (“ECtHR” or “the Court”), which now sits in Strasbourg, France as the largest international court operating in the world.3 Additionally, the Council of Europe (“the Council”) organs now include a Parliamentary Assembly with parliamentarians drawn from all participating nations, and the Committee of Ministers, a political committee comprised of representatives of all Foreign Ministers. While it cannot invalidate national laws or domestic judgments, all forty-seven Member States of the Council of Europe are bound to accept the judgments of the Court, and Strasbourg “can be seen as carrying out a judicial control, on the international plane, of the exercise of democratic discretion at the national level by domestic authorities (legislative, executive or judicial).” Strasbourg’s control is sometimes said to be “quasi-Constitutional”—providing both generalized standards of human rights for the European space, and through the right of individual petition, specific relief for distinct violations. The ECtHR has its own independent rules but its basic outlines are governed by the ECHR itself, which can only be amended though the addition of protocols, unanimously ratified by the Member States. To date, fourteen protocols have been adopted and twelve ratified, with most adding additional rights to the Convention, some addressing Convention procedures, and a few addressing the powers of the Court. Of this last group, the two most important are Protocol No.
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11 and Protocol No. 14, which seek, respectively, to improve the efficiency and quality of Court judgments. Protocol No. 14 was adopted to improve the efficiency and maintain the effectiveness of the Court, as the simplified, full-time Court created by Protocol No. 11 still suffered the “risk of . . . becoming totally asphyxiated.”11 Protocol No. 14, however, has become an object of controversy within the Council, as the Russian State Duma—the federal parliament—has yet to ratify it. Already suffering from deteriorating conditions unabated by Protocol No. 11, the Court now finds itself in an international tug-of-war between other Council Member States and Russia. As the preeminent model for the international judiciary, the fate of the European Court of Human Rights should concern scholars, jurists, and human rights defenders the world over. This Recent Development summarizes the background to, drafting of, and key provisions of Protocol No. 14 and its pending reforms. It then goes on to describe the current stalemate created by the Russian Federation’s non-ratification of the reorganization, critiquing Russia’s apparent reasons for inaction. While arguing in favor of immediate ratification, it attempts to offer some indications of how the Court may move forward.

Protocol No. 11 proved very effective. While the Commission and the Court had released 38,389 decisions and judgments between 1954 (when the Commission was created) and 1998 (when Protocol No. 11 abolished the Commission), the reformed Court alone nearly doubled that total in its first five years. Nonetheless, the enlargement of the Council of Europe and the concomitant increase in awareness of human rights throughout Europe (especially in the post-Soviet world) has resulted in a skyrocketing number of applications. From 1990 to 1994, applications increased by 96%; between 1994 and 1998, applications increased another 76%; and in the next four years to 2002, applications nearly doubled yet again, increasing by 90% to 34,546. Even with the advent of Protocol No. 11 reforms, the Court had only reached 65.2% efficiency by 2003—leaving 800 unprocessed applications per month. The situation has only worsened. Despite the more-than-doubling of the Court’s Registry staff in the previous seven years,
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over 20,000 of 50,000 incoming applications were left unaddressed in 200615 and there were 79,400 applications pending in 2007.In 2007, 45% of all applications awaiting the initial three-judge committee review had been lodged a year or more previously. Court Registrar Erik Fribergh estimated that, for the first six months of 2008, the number of pending cases was “roughly 89,000.” The Council of Europe’s response to this dire situation was immediately to begin discussions on further reforms to the system. These efforts culminated in Protocol No. 14, which was opened for signature and ratification in 2004. At the time, the Committee of Ministers expressed the hope that complete ratification could be achieved within two years.20 Poland became the 46th, and currently last, state to ratify the Protocol on October 12, 2006. All Council of Europe Member States have signed Protocol No. 14, attesting to both its multilateralism and the consensus on its necessity for the survival of the Court. However, five years since the Protocol was opened and nearly a decade since the critical problems of the Court were first identified, a single country—Russia—has held out on ratification. Negotiations between the Russian State Duma’s Legal Committee and the Council of Europe Parliamentary Assembly’s Committee on Legal Affairs and Human Rights are ongoing, but “the Court cannot wait much longer. The rapid accumulation of pending cases and the long delays that result as a consequence risk undermining the unique right of the individual application that underpins the Convention system. While debate exists as to the original mission of the Strasbourg system and whether it was meant to be a court of last resort for claims for accountability and justice in individual cases, rather than primarily a norm-setting body, Protocol No. 11 tipped the debate in favor of the proponents of individualized justice. Making the acceptance of individual petitions compulsory for member states, Protocol No. 11 ensured that the flood of claimants would continue. While the purpose of this piece is not to engage in this debate, which has been ably discussed elsewhere, some historical context concerning the transition of the Court is worth noting. The Council of Europe emerged out of the unique circumstances of postwar Western Europe in response to burgeoning Soviet power and to the horrors
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exerted by authoritarianism.25 Thus, at its inception the European Convention on Human Rights and the court it created were much more about protecting the democratic identity of member states through the medium of human rights, and about promoting international cooperation between them, than . . . about providing individuals with redress for human rights violations by national public authorities. The right of individual petition was initially optional for Member States, and for most of its existence the Court was part-time, and “largely ignored,” receiving only 800 or so individual applications per year. Furthermore, the original conception of Court action—the adjudication of interstate complaints—never gained much traction, likely because this adversarial approach was contrary to the cooperative ethos of the Council itself. The situation, however, changed drastically in the last decade of the twentieth century with the inclusion of nearly all of the former Communist nations of Central and Eastern Europe and the former Yugoslavia in the Council. Today, the number of Member States has expanded from ten to forty-seven; the numbers alone give some idea that the Council of Europe institutions as originally conceived may not be equipped to handle the demands of its members, especially in light of the complex and violent ethnic and religious disputes that dominate the political narratives post-Soviet states. Protocol No. 11 was drafted and ratified in the milieu of a system already beginning to resemble an apex court. Protocol No. 11 abolished the European Commission on Human Rights and transferred the Commission’s responsibilities to a full-time, fully judicialized Court. Jurisdiction and right of individual petition against Contracting States became compulsory. The number of judges now equals the number of Member States, and they are elected for a six-year, renewable term. In the interests of manageability, the Court currently sits in a Grand Chamber of seventeen judges. Smaller chambers of seven judges initially consider cases and committees of three judges consider questions of admissibility. The smaller chambers and committees are balanced by gender and by national legal system, according to the Rules of the Court.33 The Committee of Ministers, deemed to be too much of a political institution to settle
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cases on the merits, henceforth only ensures the execution of the Court’s judgments.34 However, despite the efficiency gains made by full judicialization, it soon became evident that Protocol No. 11’s reforms would not have a lasting effect on the Court’s capabilities, and that additional transformations were still necessary.

2.3. To contact the European Court of Human Rights Conditions of admissibility

The general order of the addressing applications to ECHR (Basis of the confession of the complaint acceptable), Explained in the following Schema “The life of on application”:

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The handling of applications

Each application is assigned to a Section, where it will be dealt with by the appropriate judicial formation: a Chamber, a Committee or a single judge. An individual application that clearly fails to meet one of the admissibility criteria is referred to a single judge, if the State concerned has accepted the procedure, or else to a Committee. In both cases, the draft decision is prepared by or under the responsibility of a non-judicial rapporteur. It is then submitted to a Committee or a single judge as appropriate. In the former case, a unanimous vote is required to declare the case inadmissible or strike it out. A decision of inadmissibility by a Committee or a single judge is final. Those applications not rejected at the first stage, that is, those that require further scrutiny, are referred to a larger judicial formation. For those States that remain under the procedures of Protocol No. 11, such cases are referred to a Chamber and examined in the usual way. Where the respondent State has accepted the Protocol No. 14 procedures, the judgment in a case that can be dealt with by applying well-established case-law will be delivered by a three-judge Committee [1]. The procedure followed in such cases is simpler and lighter. In contrast to the Chamber procedure, the presence of the national judge is not required, although the Committee may vote to replace one of its members by the judge elected in respect of the respondent State. Committee judgments require unanimity; where this is not achieved, the case will be referred to a Chamber. A Committee judgment is final and binding, there being no possibility of seeking referral to the Grand Chamber, as is possible with Chamber judgments. All final judgments of the Court are binding on the respondent States concerned. Responsibility for supervising the execution of judgments lies with the Committee of Ministers of the Council of Europe.

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The Committee of Ministers verifies whether the State in respect of which a violation of the Convention is found has taken adequate remedial measures, which may be specific and/or general, to comply with the Court’s judgment.

Protocol No. 14 In addition to the two procedures already described, Protocol No. 14 contains several other amendments to the Convention. It will introduce a non-renewable term of office of nine years for judges. It will allow the Plenary Court to request the Committee of Ministers to reduce the size of Chambers from seven members to five for a fixed period of time. A new mode of designation will be introduced for ad hoc judges. A new ground of inadmissibility will be introduced (“no significant disadvantage”). The Council of Europe Commissioner for Human Rights will be entitled to submit written comments and take part in the hearing in any case before a Chamber or the Grand Chamber. The Committee of Ministers will be able to request interpretation of a judgment of the Court. It will also be able to take proceedings in cases where, in its view, the respondent State refuses to comply with a judgment of the Court. In such proceedings, the Court will be asked to determine whether the State has respected its obligation under Article 46 of the Convention to abide by a final judgment against it. Finally, the Protocol will allow the European Union to accede to the Convention. With the Russian ratification having taken place in February 2010, the Protocol entered into force on 1 June 2010. The judges in office on that date will have their term of office increased to a total of nine years if they are serving their first term and by two years otherwise.

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Role of the Registry

Article 25 of the Convention provides: “The Court shall have a registry, the functions and organisation of which shall be laid down in the rules of the Court. The Court shall be assisted by legal secretaries.” The task of the Registry is to provide legal and administrative support to the Court in the exercise of its judicial functions. It is therefore composed of lawyers, administrative and technical staff and translators. At the end of 2009 the Registry comprised some 640 staff members. Registry staff members are staff members of the Council of Europe, the Court’s parent organisation, and are subject to the Council of Europe’s Staff Regulations. Approximately half the Registry staff are employed on contracts of unlimited duration and may be expected to pursue a career in the Registry or in other parts of the Council of Europe. They are recruited on the basis of open competitions. All members of the Registry are required to adhere to strict conditions as to their independence and impartiality. The head of the Registry (under the authority of the President of the Court) is the Registrar, who is elected by the Plenary Court (Article 26 (e) of the Convention). He/she is assisted by a Deputy Registrar,

likewise elected by the Plenary Court. Each of the Court’s five judicial Sections is assisted by a Section Registrar and a Deputy Section Registrar. The head of the Registry (under the authority of the President of the Court) is the Registrar, who is elected by the Plenary Court (Article 26 (e) of the Convention). He/she is assisted by a Deputy Registrar, likewise elected by the Plenary Court. Each of the Court’s five judicial Sections is assisted by a Section Registrar and a Deputy Section Registrar. The principal function of the Registry is to process and prepare for adjudication applications lodged with the Court. The Registry’s lawyers are divided into thirty-two case-processing divisions, each of which is assisted by an
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administrative team. The lawyers prepare files and analytical notes for the judges. They also correspond with the parties on procedural matters. They do not themselves decide cases. Cases are assigned to the different divisions on the basis of knowledge of the language and legal system concerned. The documents prepared by the Registry for the Court are all drafted in one of its two official languages (English and French). In addition to its case-processing divisions, the Registry has divisions dealing with the following sectors of activity: case management and working methods; information technology; case-law information and publications; research and library ; just satisfaction; press and public relations; and internal administration (including a budget and finance office). It also has a central office, which handles mail, files and archives. There are two language divisions, whose main work is translating the Court’s judgments into the second official language and verifying the linguistic quality of draft judgments before publication.

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Conclusion In 1949, the Treaty of London established the Council of Europe (COE) based on principles of pluralist democracy, human rights, and the rule of law. For a state to join the COE, it must demonstrate both a respect for the rule of law and for human rights. Additionally, the COE is concerned with promoting European culture and diversity, consolidating and maintaining democratic stability, and promoting economic strength. (108) States that join the Council of Europe retain their individual sovereignty and political identity. However, they must fulfill treaty obligations signed at the COE headquarters located at the Palais de l'Europe in Strasbourg (France). The institution's official languages are English and French, although the Parliamentary Assembly also uses German, Italian, and Russian as working languages. The Council has 45 member states with over 875 million people and is in dialogue with over 400 non-governmental organizations (NGOs) with consultative status.

Ten members joined the Council of Europe at its inception in 1949: Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, and the United Kingdom. Greece and Turkey joined in 1949; Iceland and Germany the following year. Austria became a member in 1956, Cyprus did so in 1961, Switzerland in 1963, Malta in 1965, Portugal in 1976, Spain in 1977, Liechtenstein in 1978, San Marino, ten years later in 1988, Finland in 1989, and finally, Andorra in 1994.

After the fall of the Communist regimes in 1989, several states from Central and Eastern Europe became members of the Council of Europe. Hungary joined in 1990, Poland in 1991, Bulgaria in 1992; and Estonia, Lithuania, Slovenia, the Czech Republic, Slovakia, and Romania all joined in 1993. Latvia, Albania, Moldova, Ukraine, and the Former Yugoslav Republic of Macedonia became members in 1995, while Russia and Croatia joined the following year. The newest members of
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the Council of Europe are Georgia (1999), Armenia and Azerbaijan (2001), Bosnia and Herzegovina (2002), and Serbia and Montenegro (2003). The Council of Europe has granted several states Observer Status, including Canada, the Holy See (the Vatican), Japan, Mexico, and the United States.

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Section 3 Judgments against Turkey Human rights in Turkey are theoretically protected by a variety of international law treaties, which take precedence over domestic legislation, according to Article 90 of the 1982 Constitution. The issue of human rights is of high importance for the negotiations with the European Union (EU). Acute human rights issues include in particular the status of Kurds in Turkey. The conflict with the PKK, a militant guerrilla group, has caused numerous human rights violations over the years. There is an ongoing debate in the country on the right to life, torture, freedom of expression as well as freedoms of religion, assembly and association.

European Court of Human Rights judgments

Turkey's human rights record has long continued to attract scrutiny, both internally and externally. According to the Foreign Ministry, Turkey was sentenced to 33 million euros in 567 different cases between 1990—when Turkey effectively allowed individual applications to the European Court of Human Rights (ECtHR)—and 2006.[5] Most abuses were done in the South-East, in the frame of the conflict with the PKK. In 2007, there were 2830 applications lodged against the Republic of Turkey before the ECtHR and consequently 331 judgments on the merits have been issued affirming 319 violations and 9 non-violations.[6] In 2008, Turkey ranked second after Russia in the list of countries with the largest number of human rights violation cases open at the European Court of Human Rights, with 9,000 cases pending as of August 2008. Between 1 November 1998 and 31 December 2008 the ECtHR received 24,945 applications from Turkey. It declared 2,237 cases admissible and 13,615
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inadmissible. During the same time it reached 1,905 judgments finding at least one violation in 1,652 cases. While there are hardly any decision regarding Article 14 of the European Convention of Human Rights (ban of discrimination), many judgments concerning Article 2 (right to life) and Article 3 of the Convention (ban of torture) were taken on procedural grounds rather than testifying an involvement of State agencies. According to the European Commission on Enlargement of the EU Turkey continued to make progress on the execution of ECtHR judgments. All pecuniary compensation was paid on time, totalling €5.2 million in 2008. The ECtHR has heard nine cases against Turkey concerning political party bans by the Constitutional Court of Turkey. In all but one case (which concerned the Islamist Welfare Party), the European Court has ruled against the decision to ban, finding Turkey in violation of articles 10 and 11 of the European Convention (freedom of expression and freedom of association). The ECtHR's decision concerning the Welfare Party has been criticized for lack of consistency with its other decisions, in particular by Human Rights Watch. One ECtHR judgment sentenced Turkey to a 103,000 euros fine for its decisions about the Yüksekova Gang (aka "the gang with uniforms"), related to the JİTEM clandestine gendarmerie intelligence unit. The EHCR also sentenced in 2006 Turkey to a 28,500 Euros fine for the JİTEM murder of 72-years-old Kurdish writer Musa Anter, in 1992 in Diyarbakir. Other cases include the 2000 Akkoç v. Turkey judgment, concerning the assassination of a trade-unionist; or the Loizidou v. Turkey case in 1996, which set a precedent in the Cyprus dispute, as the ECtHR ordered Turkey to give financial compensation to a person expelled from the Turkish-controlled side of Cyprus. The ECtHR also awarded in 2005 Kurdish deputy LeylaZana 9000 € from the Turkish government, ruling Turkey had violated her rights of free expression. Zana, who had been recognized as prisoner of conscience by Amnesty International and had been awarded the Sakharov Prize by the European Parliament, had been jailed in 1994, allegedly for being a member of the

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outlawed PKK, but officiously for having spoken Kurdish in public during her parliamentary oath.

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3.1. Cases involving violation Civil law and freedoms.

The right to life The right to life may not only be threatened by execution of death penalties. In particular during the 1990s there have been many instances of extrajudicial executions, (political) killings by unidentified perpetrators (failimeçhulcinayetler) and cases of "disappearances".

Capital punishment The death penalty has not been implemented in Turkey since October 1984. Turkey abolished the sentence for peace time offences in 2002 and for all offences in 2004. The sentence was replaced by aggravated life imprisonment (ağırlaştırılmışmüebbethapiscezası). According to Article 9 of Law 5275 on the Execution of Sentences[10] these prisoners are held in individual cells in high security prisons and are allowed to exercise in a neighbouring yard one hour per day.

Extra-judicial executions On 15 March 1990 Amnesty International published a first report on extrajudicial executions in Turkey. In the following years the problem became more serious. The Human Rights Foundation of Turkey determined the following figures on extrajudicial executions in Turkey for the years 1991 to 2001. On 18 December 2001 the UN Special Rapporteur on Extrajudicial, summary or arbitrary executions, Ms. Asma Jahangir, presented a report on a visit to Turkey. The report presented details on operations against prisoners (26 September 1999, 10 prisoners killed in a prison in Ankara; 19 December 2000, an operation in 20 prisons launched throughout Turkey resulted in the death of 30 inmates and two gendarmes).
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For the years 2000-2008 the Human Rights Association (HRA) presented the following figures on doubtful deaths/deaths in custody/extra judicial execution/torture by paid guard village. In 2008 the human rights organization Mazlum Der counted 25 extrajudicial killings in Turkey. Unsolved killings The mass violations of human rights in the mainly Kurdish-populated southeast and eastern regions of Turkey in the 1990s took the form of enforced disappearances and killings by unknown perpetrators which the state authorities showed no willingness to solve. In a press release on 1 September 2009 the Human Rights Association stated that until the end of 2008 a total of 2,949 people had been killed by unknown perpetrators and 2,308 people had become victims of extrajudicial executions.

A parliamentarian commission to research killings by unknown perpetrators (failimeçhulcinayetleriaraştırmakomisyonu) was founded in 1993 and worked for about two years. Many members complained that they had not been assisted and their work had been undermined.[18] One member of the commission, EyüpAşık, stated that the Turkish Hezbollah had been behind many of these killings and added that the State had had three effective arms in the fight against terrorism: special teams, village guards and Hezbollah. Although he had witnessed about 80 actions of Hezbollah in Adıyaman province the then Minister for the Interior had said that there was nothing by that name. This in turn had made him believe that the State supported Hezbollah.

Human Rights Watch (HRW) first called for an investigation of links between Hezbollah and the security forces in 1992. In a separate report HRW stated: "During 1992 there was an extremely disturbing increase in the number of suspicious deaths in southeast Turkey. Hundreds of people were killed by
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unknown assailants; many of those people were leaders or in positions of responsibility in the Kurdish community -- doctors, lawyers, teachers, political leaders, journalists, human rights activists, businessmen... Human rights activists were among the victims. Thirteen of the suspicious killings since January 1992 were of journalists." Based on the data of the Interior Ministry, the daily “Zaman” reported that between 1987-2001 a total of 2,914 political killings, 1,334 of the in the responsibility area of the police and 1,580 in area of the gendarmerie, were committed in the Eastern and Southern Eastern Anatolia Regions. 457 of the killings in areas of the police and 1,291 in areas of the gendarmerie had not been clarified.

Disappearances In Turkey, the military campaign against Kurdish secessionists in Eastern Anatolia has been accompanied by numerous enforced disappearances, which also gave rise to judgments of the European Court of Human Rights. There were only a handful of cases of "disappearances" in Turkey in the 1980s, but a high number of deaths in custody. The opposite was true for the 1990s, when the number of people who "disappeared" after having been abducted by agents of the States rapidly increased.

On 28 December 1998 the UN Working Group on Enforced or Involuntary Disappearances issued a Report on the visit to Turkey by two members of the Working Group from 20–26 September 1998. It stated inter alias: "Most of the disappearances concerned persons of Kurdish ethnic origin and occurred in the provinces of Diyarbakir and Siirt, in south-east Anatolia, where the armed and security forces are combating the PKK and where a state of emergency is in force. Some of the reported disappearances took place in Antalya, Izmir and Istanbul. Most of the cases followed the same pattern: the missing persons had allegedly been arrested at their homes on charges of belonging to the PKK and taken to the
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police station but their detention was later denied by the authorities." In her report of 18 December 2001 the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Ms. Asma Jahangir, wrote: While the number of cases of abductions or “disappearances” have decreased over the last few years, at the time of the Special Rapporteur’s visit such incidents still did occur, particularly in the remote areas of south-east Turkey, and there was deep concern at the recent disappearance of two persons.

In some places on the Internet a list attributed to the HRA can be found (but not on the website of the HRA). It is said that the original list contained 839 names, but that adding further names the list covered 1,251 names in the end. In a revised list that covers only the time between 1980 and 1999 Helmut Oberdiek reached a figure of 818 cases of "disappearances" in Turkey. The so called Saturday Mothers held weekly protests against "disappearances" between May 1995 and 1999. They had to suspend their action on 13 March 1999 after week 200, because of intense pressure, detention and ill-treatment. In March 2009 the Saturday Mothers took their action up again.

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3.2. Cases of political rights and freedoms Torture The widespread and systematic use of torture in Turkey was first observed by Amnesty International (AI) after the 1971 Turkish coup d'état. Until 2002 the organization continued to speak of systematic torture in Turkey. Günter Verheugen, Commissioner for Enlargement of the European Union went to Turkey in September 2004 and maintained that torture was no longer systematic practice in Turkey. The Human Rights Association (HRA) protested against this evaluation and pointed at recent figures and definitions of systematic torture by the European Committee for the Prevention of Torture and the UN Committee against Torture.

Since 2005 incidents of torture seem to be on the rise.[According to an October report by the Prime Ministry's Human Rights Presidency (HRP), the number of torture and cruel treatment cases reported in the first six months of the year surpassed the number reported in the first half of 2007. The HRP reported that, in the first half of the year, 178 persons reported cruel treatment and 26 reported torture, up from 79 reports of cruel treatment and 17 reports of torture during the same period in 2007. In the report on progress of November 2008 the European Commission stated, "the number of applications to NGOs in relation to cases of torture and ill-treatment has increased, in particular outside official places of detention, notably during apprehension, transfer, or in the open with no detention registered... There is a lack of prompt, impartial and independent investigation into allegations of human rights violations by members of security forces." In the 2009 annual report Amnesty International stated: "Reports of torture and other ill-treatment rose during 2008, especially outside official places of detention but also in police stations and prisons.

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Deaths in custody An important characteristics of the period following the 12 September 1980 military intervention was the disregard to the right to life and the increase in torture cases and deaths due to torture. The HRFT published two reports on Deaths in Custody (14 and 15 years since the military take over) presenting a list of 419 deaths in custody (in 15 years) with a suspicion that torture might have been the reason. Another 15 deaths were attributed to hunger strikes while medical neglect was given as the reason for 26 deaths. On the basis of this list Helmut Oberdiek compiled a revised list for 20 years (12 September 1980 to 12 September 2000) and concluded that in 428 cases torture may have been the reason for the death of prisoners. In 2008 alone the Human Rights Foundation of Turkey reported of 39 deaths in prison. In some cases torture was involved.

Prison conditions Turkey has repeatedly been criticized for poor prison conditions and in particular for not solving the problem of overcrowding. Following the 1980 Turkish coup d'état political prisoners tried in military courts were held in military prisons and were thus subjected to military discipline. Prisoners were obliged to participate in daily roll-calls, the singing of marches and drills in the open air. In particular, Diyarbakır and Mamak Military Prisons (the latter in Ankara) became notorious for the routine beatings which accompanied attempts to enforce military discipline among civilians. In addition, so-called "inaugural-beatings" had been institutionalized in almost all prisons in Turkey. In 2008 allegations of ill-treatment in prisons and during transfer continued. Small-group isolation remained a problem across the prison system for people accused or convicted of politically motivated offences. The Human Rights Foundation of Turkey registered 39 deaths in prison.

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Freedom of religion Although its population is overwhelmingly Muslim, Turkey is a secular country per Article 24 of the Turkish Constitution. The two main Islamic streams in Turkey are Sunni and Alevi. In Turkey Alevi are the minority, estimated at 17 percent of the Muslim population. Religious education is compulsory in primary and secondary education (Article 24 of the Constitution). Mainly Sunni theology is taught. The government oversees Muslim religious facilities and education through its Directorate of Religious Affairs, which is under the authority of the Prime Ministry. The Directory regulates the operation of the country's 77,777 registered mosques and employs local and provincial imams, who are civil servants. Sunni imams are nominated and paid by the state. The Alevis pray in cemevis. "Cemevleri" (places of gathering) have no legal status as places of worship in the state. However, Kuşadası and Tunceli municipalities ruled in 2008 that Alevicemevleri are considered places of worship. Exact figures on the non-Islamic population in Turkey are not available. Some sources estimate the Christian population between three and five percent.[50] Their communities mainly exist in Istanbul with Armenian and Greek-Orthodox Christians; in southeastern Turkey other groups like the Syriacs and Yazidi (a syncretistic faith) can be found. In the big cities Jewish and other communities such as the Jehovah's Witnesses exist.[50] According to the Treaty of Lausanne only the Armenian, Greek and Jewish communities are recognized as minorities. According to the human rights organization Mazlumder, the military charged individuals with lack of discipline for activities that included performing Muslim prayers or being married to women who wore headscarves. In December 2008 the General Staff issued 24 dismissals, five of which pertained to alleged Islamic fundamentalism. According to the progress report 2008 of the European Union freedom of religion, freedom of worship continued to be generally respected. The Law on foundations adopted in February 2008 addresses, among other things, a number of property issues regarding non-Muslim minorities.
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Freedom of expression Article 26 of the Constitution guarantees freedom of expression. Articles 27 and 28 of the Constitution guarantee the "freedom of expression" and "unhindered dissemination of thought". Paragraph 2 of Article 27 affirms that "the right to disseminate shall not be exercised for the purpose of changing the provisions of Articles 1, 2 and 3 of [the] Constitution", articles in question referring to the unitary, secular, democratic and republican nature of the state. Law 765 (the old penal code) that entered into force on 1 March 1926 restricted freedom of expression, despite several amendments. Law 5237 that replaced the old penal code on 1 June 2005 preserved several provisions that restrict freedom of thought and expression. A number of special laws such as the Law 5816 (offences against the memory of Atatürk), Press Law and the Law on Political Parties also restrict freedom of expression.

In the 1970s and 1980s the Articles 141 (membership of communist organizations), 142 (communist or separatist propaganda) and 163 (membership of or propaganda for anti-secular organizations) of Law 765 (the Turkish Penal Code, TPC) were most frequently used to punish peaceful opposition. On 12 April 1991 Law 3713 on the Fight against Terrorism (or Anti-Terror Law, ATL) entered into force. It abolished these provisions, but retained part of Article 142 TPC in Article 8 ATL. Journalists, politicians, human rights defenders and trade unionists were convicted under this provision, often simply for having used the word "Kurdistan". After the European Court of Human Rights had passed more than 100 judgments finding a violation of Article 10 of the European Convention of Human Rights some changes were made to existing legislation. Article 8 of the ATL was abolished by Law 4928 of 30 July 2003. Another frequently used Article 312/2 of the TPC (incitement to hatred and enmity) was amended by Law 4744 of 9 February 2002. The new version narrowed the use of this Article by introducing the condition if the incitement might endanger public order. The new wording
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(and sentences) for such an "offence" are now contained in Article 216 of Law 5237. The sentence that mere criticism should not be punishable under Article 159 of Law 765 (denigrating Turkishness, the Republic or the Grand National Assembly of Turkey) was added to the law text, although this had already been established in the case law. The "offence" is now described in Article 301 of Law 5237. After severe criticism from NGOs and European institutions Article 301 was once again amended on 30 April 2008. The amendments introduced a requirement for permission to be obtained from the Justice Minister in order to launch a criminal investigation. Following the adoption of the amendments to Article 301, Turkish courts had forwarded, by September 2008, 257 cases to the Minister of Justice for prior authorisation. The Minister had reviewed 163 cases and refused to grant permission to proceed in 126 cases. The Minister of Justice authorised the criminal investigations to continue in 37 cases. This included one case which was initiated following a statement made by a Turkish writer on the Armenian issue shortly after the assassination of the Turkish journalist of Armenian origin, Hrant Dink. Other legal provisions that restrict freedom of expression include Articles 215, 216 and 217 of the Turkish Criminal Code, that criminalise offences against public order, and the Anti-Terror Law have been applied to prosecute and convict those expressing non-violent opinions on Kurdish issues.

Freedom of assembly Article 34 of the 1982 Constitute (as amended on October 17, 2001) states, "Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission." Restrictions may only be introduced on the grounds of national security, and public order, or prevention of crime commitment, public health and public morals or for the protection of the rights and freedoms of others. Article 3 of Law 2911 on demonstrations and
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meeting provides, "Everybody has the right to hold unarmed and peaceful assembly without prior permission."[69] Nevertheless Amnesty International stated in 2009 that the right to freedom of peaceful assembly was denied, and law enforcement officials used excessive force to disperse demonstrations.

Deaths due to excessive police force during demonstrations have a long history in Turkey. They include

 Taksim Square massacre of 1 May 1977, death toll varies between 34 and 42  Further casualties on 1 May Labour Day (all in Istanbul),  1989: 1 person killed,  1996: 3 demonstrators killed.

Newroz celebrations; usually on or around 21 March each year • Newroz 1991: 31 people shot dead.The annual report of the Human Rights Foundation of Turkey (HRFT) reported that one demonstrator was killed in Nusaybin. • Newroz 1992: The Newroz festivities left at least 91 people dead in three towns of the southeast, Cizre, Sirnak and Nusaybin, and 9 others elsewhere in the region, and according to Helsinki Watch, 'all or nearly all of the casualties resulted from unprovoked, unnecessary and unjustified attacks by Turkish security forces against peaceful Kurdish civilian demonstrators'. • Newroz 1993: Three people were killed in Adana and Batman.

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Different occasions • Funeral of VedatAydin in Diyarbakir in June 1991, 15 people were shot dead.The annual report of the HRFT reported that seven demonstrators were killed.

• Demonstration in Digor because of the 9th anniversary of the beginning of the armed fight of the PKK on 15 August 1984. 15 demonstrators were killed. • 20 people died in Gazi and 1 May quarter of Istanbul during an unrest that started with shots on coffee shop frequented by Alevis. • Funeral of PKK militants at the end of March 2006: 13 people were killed in Diyarbakir and further places.

Ethnic rights Though Turkey is a land of vast ethnic, linguistic and religious diversity – home not only to Turks, Kurds and Armenians, but also, among others, Alevis, Ezidis, Assyrians, Laz, Caferis, Roma, Greeks, Caucasians and Jews, the history of the state is one of severe repression of minorities in the name of nationalism.[83] (See Demographics of Turkey). According to Article 66 of the Turkish Constitution, "everyone bound to the Turkish state through the bond of citizenship is a Turk". The Constitution affirms the principle of the indivisibility of the Turkish Nation and of constitutional citizenship that is not based on ethnicity. Consequently, the word "Turkish" legally refers to all citizens of Turkey, though individual interpretation can be more limited. According to the constitution, there are no minority rights since all citizens are equal before the law. Although the Treaty of Lausanne, before the proclamation of the Republic, guarantees some rights to non-Muslim minorities, in practise Turkey has recognised only Armenians, Greeks and Jews as minorities and excluded other non-Muslim groups, such as Assyrians and Yazidis, from the
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minority status and these rights.[84] Advocacy for protection of minorities' rights can lead to legal prosecutions as a number of provisions in Turkish law prohibits creation of minorities or alleging existence of minorites, such as Article 81 of the Law on Political Parties.

Kurdish people Due to the large population of Turkish Kurds, successive governments have viewed the expression of a Kurdish identity as a potential threat to Turkish unity, a feeling that has been compounded since the armed rebellion initiated by the PKK in 1984. One of the main accusations of cultural assimilation comes from the state's historic suppression of the Kurdish language. Kurdish publications created throughout the 1960s and 1970s were shut down under various legal pretexts. Following the military coup of 1980, the Kurdish language was officially prohibited from government institutions. The Kurdish alphabet is not recognized. Since 2002, as part of its reforms aimed at European Union integration and under pressure to further the rights of Kurds, Turkey passed laws allowing Kurdish radio and television broadcasts as well the option of private Kurdish education. In August 2009, Turkish government begun restoring names of Kurdish villages, as well as considering allowing religious sermons to be made in Kurdish as part of reforms to answer the grievances of the ethnic minority and advance its EU candidacy. Minority languages Until reforms that started in 2002, there were legal restrictions on publishing in languages other than the Turkish. Since September 2002 minorities have the right to operate private courses that teach any language spoken in Turkey.[89] Turkish is the only language that can be used in schools and universities as a first language. As concerns the Kurdish language, all such courses were closed down in 2004 by the owners.
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NGOs have called on Turkey to adopt the definitions of the European Charter for Regional or Minority Languages. If Turkey were to become a signatory to this treaty, it would have to accept and subsidise the education of minorities in their own first languages, and that for at least all the period of mandatory education. To this day 21 member states of the Council of Europe out of 49 have proceeded with ratification. The state-owned TRT has been broadcasting short programmes in a number of minority languages, including Bosnian, Arabic, Kabardian and Kurdish, since July 2003. The legal basis were the Regulation on the Language of Radio and Television Broadcasts of December 2002[93] In the beginning TV programs were restricted to 45 minutes per day; radio programs had a limit of 60 minutes per day.[92] In June 2006 the restrictions were lifted for music and film programs in minority languages. Since January 2006 the official TV channel TRT has established an additional channel TRT 6 that is broadcasting in the Kurmanji, Sorani dialects of Kurdish and also in the Zaza language. There were plans to broadcast in Armenian as well.

Other discrimination

Women In the 1930s, Turkey became one of the first countries in the world to give full political rights to women, including the right to elect and be elected locally (in 1930) and nationwide (in 1934). Therefore, the Constitution was amended. Article 10 of the Turkish Constitution bans any discrimination, state or private, on the grounds of sex. Turkey elected a female prime minister, TansuÇiller in 1995. It is also the first country which had a woman as the President of its Constitutional Court, TülayTuğcu. In addition, Turkish Council of State, the supreme court for administrative cases, also has a woman judge SumruÇörtoğlu as its President. However, representation of women in political and decision making bodies is low.
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In the Grand National Assembly of Turkey the percentage of women is 9.1 (17.3 percent is the average in the world). In 1975 the percentage was 10.9 and in 2006 it was 16.3.[96] Only 5.58 percent of mayors are women and in the whole of Turkey there is one governor (among 81) and 14 local governors. Since 1985, Turkish women have the right to freely exercise abortions in the first 10 weeks of pregnancy and the right to contraceptive medicine paid for by the Social Security. Modifications to the Civil Code in 1926 gave the right to women to initiate and obtain a divorce; a right still not recognized in Malta, an EU country.

Nevertheless, in Eastern and Southeastern Anatolia regions, older attitudes prevail among the local Kurdish, Turkish and Arab populations, where women still face domestic violence, forced marriages, and so-called honor killings. To combat this, the government and various other foundations are engaged in education campaigns in Southeastern Anatolia to improve the rate of literacy and education levels of women. In 2008, critics have pointed out that Turkey has become a major market for foreign women who are coaxed and forcibly brought to the country by international mafia to work as sex slaves, especially in big and touristic cities. A 2008 poll by the Women Entrepreneurs Association of Turkey showed that almost half of urban Turkish women believe economic independence for women is unnecessary reflecting, in the view of psychologist LeylaNavaro, a heritage of patriarchy.

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Sexuality

Homosexual sexual relationships between consenting adults in private is not a crime in Turkey. The age of consent for both heterosexual and homosexual sex is eighteen. On the other hand, the criminal code has vaguely worded prohibitions on "public exhibitionism" and "offenses against public morality" that are sometimes used to discriminate against the LGBT community. As of 2006, Turkey neither has a law permitting homosexuals to get married, nor does it have a law against the discrimination of Turkey's LGBT community. Lambda Istanbul, a LGBT organization founded in 1996, was dissolved in May 2008 following a court decision. The prosecution argued that its objectives went against "the law and morality", but Human Rights Watch has criticized the decision, claiming it had been closed only on procedural grounds.[104] On 28 November 2008, the Supreme Court of Appeals overturned an Istanbul court's decision ordering the closure of the lesbian, gay, bisexual, and transgender solidarity organization, Lambda Istanbul.

Homosexuals have the right to exemption from military service, if they so request, only if their "condition" is verified by medical and psychological tests, which often involves presenting humiliating, graphic proof of homosexuality, and anal examination. The killing of EbruSoykan, a prominent transgender human rights activist, on March 10, 2009, shows a continuing climate of violence based on gender identity that authorities should urgently take steps to combat, Human Rights Watch said on 13 March 2009.[106] News reports and members of a Turkish human rights group said that an assailant stabbed and killed Ebru, 28, in her home in the center of Istanbul. Members of Lambda Istanbul, which works for the rights of lesbian, gay, bisexual, transgender, and transsexual (LGBTT) people, told Human Rights Watch that in the last month Ebru had asked the Prosecutor's Office for
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protection from the man who had beaten her on several occasions and threatened to kill her. Lambda Istanbul was told that a few weeks ago police detained the man but released him two hours later. The same man is under police custody as the murder suspect.[ On 21 May 2008 Human Rights Watch published a 123-page report documenting a long and continuing history of violence and abuse based on sexual orientation and gender identity in Turkey. Human Rights Watch conducted more than 70 interviews over a three-year period, documenting how gay men and transgender people face beatings, robberies, police harassment, and the threat of murder. The interviews also exposed the physical and psychological violence lesbian and bisexual women and girls confront within their families. Human Rights Watch found that, in most cases, the response by the authorities is inadequate if not nonexistent.

Disabled citizens The UN Convention on the Rights of Persons with Disabilities was signed by the Turkish Republic on 30 March 2007. The convention was discussed in TBMM (Turkish Grand National Assembly) on 8 May 2008 and it was ratified on 3 December 2008. In July 2005 Law 5378 on Disabled People was enacted. In one particular case, an advocacy group for people with mental disabilities called Mental Disability Rights International criticized the treatment of the mentally ill in a report called "Behind Closed Doors: Human Rights Abuses in the Psychiatric Facilities, Orphanages and Rehabilitation Centers of Turkey". As a result of this criticism, Turkey's largest psychiatric hospital, the Bakırköy state hospital in Istanbul, abolished the use of "unmodified" ECT procedures.
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Racism Analysts pointed (in 2010) to racism and hate speech on the rise in Turkey, including against Armenians and against Jews, examples include: such outbursts: "No Armenians and Jews are allowed through this door" and "It is free for dogs to enter." The report says "If one goes through the press in Turkey, one would easily find cases of racism and hate speech, particularly in response to the deplorable carnage and suffering in Gaza. These are the cases in which there is no longer a distinction between criticizing and condemning Israel's acts and placing Jews on the firing line.

Hate crimes During 2008 there has been an increase in "hate crimes" in Turkey originating from racism, nationalism and intolerance. Despite provisions in the Constitution and the laws there have been no convictions for a hate crime so far, from either racism or discrimination. Since the beginning of 2006 a number of killings were committed in Turkey against people of ethnic or religious minorities or different sexual orientation or social sexual identity. Article 216 of the Turkish Penal Code provides for a general ban of publicly inciting people to hatred and disgust.

Turkey does not appear to be the scene of large-scale or overt expressions of racism against individuals in the strictest sense of term. However, one of the main challenges facing Turkey in the field of ECRI's (European Commission against Racism and Intolerance) concerns would appear to be the need to reconcile the strong sense of national identity and the wish to preserve the unity and integrity of the State with the right of different minority groups within Turkey to express their own sense of ethnic identity, for example through the maintenance and development of linguistic and cultural aspects of that identity.

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Internally displaced people Around a million people became displaced from towns and villages in southeastern Turkey during the 1980s and 1990s as a result of the insurgent actions of the Kurdistan Workers’ Party (PKK) and the counter-insurgency policies of the Turkish government.[115] By some accounts, Turkey had the second largest population of internally displaced persons in the world, whose plight has attracted international concern. The Migrants’ Association for Social Cooperation and Culture (GÖÇ-DER) was founded in Istanbul in 1997. Branches were later established in Diyarbakir, Van and Hakkari. GÖÇ-DER has been sued five times for its activities. Four of them ended in acquittal.[117] One case demanding the closure of GÖÇ-DER Diyarbakir is still pending after the Court of Cassation cancelled the decision of Diyarbakir Judicial Court No. 1 not to band the association. This court has to hear the case again and scheduled the next hearing for 2 February 2010. In July 2008 BeşirAtalay, Minister of the Interior, answered a request by CHP for Adıyaman province, ŞevketKöse. He said that 314,000 people had applied for aid in order to return to their village. As of May 2008 151,469 people had returned to their villages in 14 provinces. They had been paid about 530 million Turkish pounds. On 12 April 2006, Human Rights Watch researcher Jonathan Sugden was detained by police in Bingöl, while he was carrying out research in the predominately Kurdish southeast of the country into the possibilities for IDPs to return and abuses allegedly involving the Turkish gendarmerie and government-armed local defense units called “village guards.” He was deported to London the next day. Workers' rights The Constitution affirms the right of workers to form labor unions "without obtaining permission" and "to possess the right to become a member of a union and to freely withdraw from membership" (Article 51). Articles 53 and 54 affirm the right of workers to bargain collectively and to strike, respectively. The law prohibits strikes by civil servants, public workers engaged in the safeguarding of
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life and property, workers in the coal mining and petroleum industries, sanitation services, national defense, banking, and education; however, many workers in these sectors conducted strikes in violation of these restrictions with general impunity. The law requires that, in order to become a bargaining agent, a union must represent 50 percent plus one of the employees at a given work site and 10 percent of all the workers in that particular industry. Labor law prohibits union leaders from becoming officers of or otherwise performing duties for political parties and from working for or being involved in the operation of any profitmaking enterprise. Most labor experts in the country estimated that approximately 20 percent of the wage and salary workers in the labor force were unionized. Turkey has had a standard state-run pensions system based on European models since the 1930s. Furthermore, since 1999, Turkey has a state-run unemployment insurance system, introduced by Law 4447 obligatory for all declared workers.

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Analysis the Civil ECHR judgments against Turkey. (104) The Convention does not require a State to admit the applicant as the heir to the man to whom she was married to a purely religious basis The applicant is a Turkish citizen who was born in 1954 and lives in Islahiye (District Gaziantep, Turkey). In 1976 she married Omer Koc (Ö.K.) in a religious ceremony (Imam nikahi). Ö.K. died September 10, 2002. The youngest of six children, Eminem, born in 1990. September 11, 2003, Ms. Yiðit sued in its own behalf and on behalf of Emine, trying to her marriage to Ö.K. recognized and have Emine joined the civil registration, as his daughter. The district court allowed the second request, but rejected the request for marriage. MsYigitcontinue to apply to the pension fund pension (Bag-Kur), to a Ö.K. "pensions and health insurance benefits given to her and her daughter. Emine benefits were provided, but not to the mother, on the grounds that her marriage to Ö.K. was not legally recognized. MsYigit unsuccessfully appealed against this decision. Recalling Article 8, MsYigit complained about the refusal of the Turkish courts to pass welfare of his deceased partner's rights to it. The Grand Chamber decided to take up the complaint, Ms. Yigit, not only in terms of Article 8 (right to respect for private and family life), but in accordance with Article 14 (prohibition of discrimination) in conjunction with Article 1 of Protocol № 1 (protection of property ). The last two articles are applicable in this case because, although Article 1 of Protocol № 1 does not include the right to receive social security payments of any kind, unless the state decides to create the benefits the scheme, he should have done so in a manner compatible with article 14.

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Article 14 in conjunction with Article 1 of Protocol № 1 MsYigit, who was married in a religious ceremony, says she was treated differently than women married in accordance with Civil Code and claiming social security benefits for her late husband. The question for the court to determine whether, if there was no such difference in treatment was discriminatory or, on the contrary, reasonable and objective and, therefore, acceptable.

The Court confirmed that it is forbidden by Article 14, within the scope of the rights and freedoms guaranteed by the Convention, discrimination based on personal qualities for which individuals or groups differed from each other. Nature - civil or religious - in a marriage between two people, no doubt, accounted for such features. Accordingly, differences in treatment, such as to which Ms. Yigit subject may be prohibited by Article 14.

In considering whether there were any objective and reasonable justification for differential treatment, the Court noted, firstly, that the decision taken by the Turkish authorities in this case, pursued the legitimate aims of protecting public order (civil marriage developed, in particular, for the protection of women) and protect the rights and freedoms of others. It then considered whether there was a reasonable proportionality between the Turkish authorities' refusal to award MsYigit Social Security benefits based on the law of her deceased husband, and the objectives pursued by the authorities. On this fundamental point, the court considers that the decisive effect of the Turkish law, MsYigit could not have a legitimate expectation of receiving benefits based on the rights of his partner. The Civil Code was clear, the primacy of civil marriage, and knowing about her situation, Ms. Yigit knew that she needed to settle their relations in accordance with the Civil Code, in order to be recognized as the heir to his partner. This aspect clearly distinguish this case from another recent case where a woman marries solely in accordance with the rites of Roma have been recognized by the Spanish authorities as a "spouse" of his partner (among other things, she was
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awarded social security benefits as a spouse and was released with a book family). Finally, the Court noted that the legal and formal conditions governing civil marriages were clear and simple and do not place an undue burden on individuals. MsYigit - who had 26 years in which the contract a civil marriage - so there was no evidence to suggest that the efforts it made to streamline its position was hampered complicated administrative procedures. So it was an objective and reasonable justification "differential treatment" to which Ms. Yigitsuffered, the court ruled unanimously that there had been no violation of Article 14 in conjunction with Article 1 of Protocol № 1. Article 8 The Court confirmed the finding of the Chamber that Ms. Yigit, her partner and their children constituted a family (Mrs. Yigit joined the church marriage with Ö.K., lived with him until his death and had six children with him, the first five of which were introduced in the civil status of the father's name). It could therefore claim the right to respect for their "family life". The court noted that Ms. Yigit and her partner were able to live peacefully as a family, without any interference in their family life, the national authorities. The fact that they have opted for a religious form of marriage and not a contract of civil marriage does not entail any penalties, such as to prevent MsYigit from leading an effective family life, for the purposes of Article 8. The court pointed out that Article 8 can not be interpreted as imposing the duty of the state to recognize religious marriage, nor does it require the State to create a special regime for certain categories of unmarried couples. For this reason, the fact that MsYigit does not have the status of an heir is not in itself mean that there were violations of her rights under Article 8. Thus, the Court held, unanimously, that there was no violation of Article 8.

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Link to the stereotypical image of the Roma in scientific research and the
dictionary is not discriminatory The applicant is a Turkish citizen who was born in 1931 and lives in Ankara. He is of Roma and alleged that two government-sponsored publications, included comments and expressions that reflect anti-Roma sentiment. On behalf of the Turkish Association of Roma, Mr. Aksu filed a petition with the Ministry of Culture in June 2001, complaining that a book published by the Ministry, entitled "Roma in Turkey," contained passages that the humiliation of Roma. In particular, he argued that the author claimed that Roma were engaged in criminal activity, life as "thieves, pickpockets, swindlers, thieves, usurers, beggars, drug dealers, prostitutes and brothels." Mr. Aksu is therefore proposed that the book sales will be discontinued, and all copies confiscated. Learning from the Ministry of Culture, which, in accordance with its publications advisory board, the book reflects the research and the author does not allow any amendments, Mr. Aksu brought a civil suit against the ministry and author of the book. It requests compensation and asked for a book to be confiscated, and for its publication and distribution must be stopped. In September 2002, Ankara Civil Court rejected the request, as they relate to the author, and decided that he did not have jurisdiction over the case against the Ministry. The Court of Cassation upheld the decision and ultimately rejected a request by Mr. Aksu for rectification in December 2003. In April 2004 the Administrative Court dismissed the complaint later filed by Mr. Aksu against the ministry. Both civil court and administrative court ruled that the book was the result of research and that places in question was not hurt.

The second publication, the dictionary for students, was published in 1998 Language Association and was funded by the Ministry of Culture. In April 2002, Mr. Aksu Language Association sent a letter on behalf of the Confederation of Roma cultural associations, arguing that some of the entries in publications such as "gypsyness" for avarice and greed, was offensive and discriminatory against
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Gypsies. He asked the association to remove a number of expressions from the dictionary. Having received no response, Mr. Aksu brought a civil suit against the association in April 2003, asking the expression in question be deleted and ask for compensation for moral damage he suffered. In July 2003, the court dismissed the civil case, assuming that the definitions contained in the dictionary are based on historical and sociological facts and that there was no intention to offend or humiliate the ethnic groups. In addition, he noted that there are similar expressions in Turkish on other ethnic groups, which were also included in the dictionary. The decision was upheld by the Court of Cassation in March 2004. The applicant complained, in two separate applications, that certain passages and phrases that are included in two publications reflect clear sentiment against the Roma and that the refusal of national courts to compensate demonstrated bias against the Roma. He relied on Article 14 (prohibition of discrimination) and Article 6 (right to a fair trial). victim status of the applicant: The Court found that MrAksu was the victim status under the Convention. He was one of Roma and was offended by the language used in the publications in question. Although he was not sent directly to the person, the author or publisher of the dictionary, he was able, in accordance with domestic law, argue his case before the national courts of the two instances.

Article 14 in conjunction with Article 8 On the merits, the Court considered it more appropriate to consider the request of Mr. Aksu, in accordance with Article 14 in conjunction with Article 8.

The Court reiterated that Article 8 does not merely compel the State to refrain from arbitrary interference in private life, but can also lead to a positive obligation to take measures aimed at ensuring respect for private life. In this case, the court noted that Mr. Aksu could argue his case carefully before national courts and that
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it was clear from the case that national courts have scrutinized the cases. They thus provide a forum for resolving disputes between private individuals as part of their obligations under Article 8. The Court also emphasized that national courts were in a better position to assess the facts of this case and that it was not his function to correct errors of fact or law allegedly made in a national court, except in cases when they could have violated human rights and freedoms protected by the Convention. As for the book "Gypsies in Turkey," the Court noted that the passages cited by Mr. Aksu, when read alone, seems to be discriminatory or offensive. However, considering the whole, the book does not allow the reader to conclude that the author did not intend to offend the gypsies. This became clear in the conclusion to the book, which is the scientific study of which presents a comparative analysis and focused on the history and socio-economic conditions of Roma in Turkey. The court noted that the author actually mentioned preconceived image of Roma and gave examples of their stereotypical image. It is important to note that the passages mentioned by Mr. Aksu was not the author's comments, but examples of the perception of Gypsies in Turkish society. With regard to the dictionary, the Court noted that the expressions and definitions in question, starting with the comment that they were metaphorical in nature. Thus, the Court found no reason to depart from the findings of national courts, that Mr. Aksu not discriminated against because of the expressions in the list. The Court concluded, by four votes to three that he can not say that MrAksu was discriminated against because of his ethnicity as Roma, or that there was a refusal by the authorities to take necessary measures to ensure respect for the privacy of the applicant. There was therefore no violation of Article 14 in conjunction with Article 8.

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Analysis the political ECHR judgments against Turkey. (105) Terrorist speech In Gözel and Özer v Turkey (43453/04 and 31098/05; 6 July 2010 | judgment (in French); press release (in English)), a Turkish magazine published an article that contained a statement by the central committee of the banned MarxistLeninist/Turkish Communist Party. Another published an article about the founder of the Marxist movement in Turkey which included a statement by eight people who were in custody for belonging to illegal organisations. The editors of both magazines were convicted of publishing statements of illegal armed organisations.

The ECHR noted that the editors had been convicted for publishing texts that the domestic courts had characterised as “terrorist organisation statements” without taking into account their context or content, and held that to condemn a text simply on the basis of the identity of the author would entail the automatic exclusion of groups of individuals from the protection afforded by Article 10. It therefore concluded that since the opinions expressed did not constitute hate speech or stir up violence, the Respondent was not entitled to rely on national security to restrict the public’s right to receive information, and that Article 10 had therefore been breached.

In Ireland, the leading Supreme Court decision in this area is the deeply flawed The State (Lynch) v Cooney [1982] IR 337 upholding the infamous section 31(1) of the Broadcasting (Authority) Act, 1960 [(also here), as amended by section 16 of the Broadcasting Authority (Amendment) Act, 1976 (also here), ultimately repealed in 2001] (discussed on this blog here | here | here). On foot of the powers in that section, the Minister had proscribed the access of paramilitaries to the airwaves, and this extended to preventing an election broadcast by a candidate in a party associated with a paramilitary organisation. That association, effectively the mere identity of the candidate, was sufficient to allow the ban to
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be upheld. O’Higgins CJ held that the use of the media for the purpose of securing or advocating support for organisations which seek by violence to overthrow the State or its institutions is a use which is prohibited by the Constitution. This must now be questionable in the light of Gözel and Özer. Academic Freedom In Sapan v Turkey (44102/04; 6 July 2010 | judgment (in French); press release (in English) | h/t Strasbourg Observers), the applicant published a book on the emergence of stardom as a phenomenon in Turkey. It was based upon his doctoral thesis, and it focussed in part on a well-know pop singer. The Turkish courts held that, since the book addressed subjects related to the singer’s personal life rather than his public persona, it had infringed his personality rights. An interim order that the book be seized was eventually lifted after two years and eight months, but the singer’s damages claim was allowed to proceed.

The ECHR emphasised the importance of academic freedom, and it considered that the book was a serious academic analysis of the social phenomenon of stardom which could not be compared with the tabloid press or gossip columns. It therefore held that there were no relevant or sufficient and reasons to justify the seizure of the book, and that Article 10 had therefore been breached.

In an earlier post, I placed the terms of section 14(1) of the Universities Act, 1997 (also here) in the context of US and ECHR decisions on academic freedom, in particular the decision of the ECHR in Sorguc v Turkey 17089/03, [2009] ECHR 979 (23 June 2009). This is a very significant judgment in the development of this important right. In particular, it re-inforces the argument that, since academic freedom is protected under the ECHR as an aspect of Article 10, it should by analogy be protected under the Irish Constitution as an aspect of the right to freedom of expression in Article 40.6.1(i), or of the right to communicate protected by Article 40.3, or even as an unenumerated right located in Article 40.3.
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Turkey continues to use jail sentences to silence Kurds, handing down an outlandish prison sentence of 138 years to the former editorial manager of Turkey's only Kurdish daily on charges of "spreading propaganda for the PKK", the militant Kurdistan Workers Party, report IPS Communication Foundation (BIANET), the Committee to Protect Journalists (CPJ) and Reporters Without Borders (RSF). EmineDemir of "AzadiyaWelat" was convicted by the Diyarbakir Criminal Court on 30 December on 84 counts - representing 84 items published in 2008 and 2009 that allegedly spread propaganda for an illegal organisation. According to CPJ, the stories mainly covered Kurdish rights. The court decided on an 18-month punishment per count. Additionally, the court sentenced her to12 years "for acting on behalf of a terrorist organisation", reports CPJ. An arrest warrant was issued for Demir, who did not attend the hearing. On the same day, a three-year prison sentence was handed down to former editor-in-chief GurbetCakar of Turkey's only women magazine, "HeviyaJine" (Women's Hope), reports BIANET. She was found guilty of "committing a crime on behalf of an illegal organisation without being a member of the organisation" and "making propaganda for the PKK". Cakar was released after the hearing, having been detained since the middle of March. "The Turkish authorities must stop punishing journalists who report on Kurdish issues - journalism must not be considered a crime," said CPJ. According to Reporters Without Borders (RSF), "AzadiyaWelat" has been suspended eight times by Turkey's courts, and at least nine of its journalists are currently in prison. Last May, the former editor-in-chief of "AzadiyaWelat", VedatKursun, was sentenced to 166 years in jail on the same charges. Another former editor-in-chief, OzanKilic, received a prison sentence of 21 years last February. Meanwhile, popular Kurdish singer FerhatTunc'saquittal was overturned, reports BIANET. Tunc was originally charged with "spreading propaganda for the [illegal] Maoist Communist Party" (MKP) following a concert he gave in August 2006.
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During the concert, Tunc told his audience, "We have to overcome and destroy the fears imposed on us... We want to sing songs of peace freely on our [land] without fear and worry. These clashes must be brought to an end and all of us must do whatever we can. Let us together say 'No!' to war." "The government's treatment of the country's 14 million ethnic Kurds, most living in the east and southeast, has long been a focus of international criticism and domestic sensitivity," said CPJ. According to U.K. trial observers, the Turkish government is supporting the prosecutions because many of the defendants are members of the opposition and this year is another election year. Despite the Turkish Prime Minister's renewed interest in a permanent peace with the country's Kurdish population, anyone who speaks out on behalf of the ethnic minority continues to be faced with incredible jail sentences, report the IPS Communication Foundation (BIANET) and other news sources. For instance, popular Kurdish singer FerhatTunc is facing a prison sentence of up to 15 years for spreading propaganda for the banned Kurdistan Workers Party (PKK), during a speech he made last year at a cultural festival in the south-eastern province of Siirt, reports BIANET. In his speech, Tunc said he was excited at the prospect of peace with Turkey after 25 bloody years. More than 1,000 people have signed a petition demanding that the case be dropped. Meanwhile, if the public prosecutor gets his way, GurbetCakar, the editorial manager of Turkey's only women's magazine "RengeHeviyaJine", will spend 20 years behind bars for allegedly spreading "organisational propaganda as if the magazine was a publication organ of the PKK."

In a separate case, more than 50 politicians of the pro-Kurdish Democratic Society (DTP) had their sentence upheld last month for protesting against the closure of Kurdish Roj TV, a satellite channel broadcast from Denmark. They were

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convicted in April 2008 of "praising crime and a criminal" and must now pay a fine of nearly US$600 each. And in yet another instance, Aziz Ozer, editorial manager of "Guney" magazine, is facing up to seven and a half years in prison for publishing an account by a PKK member and a caricature that was deemed sympathetic to PKK violence. News reports say the sentences come at a time when Prime Minister RecepTayyipErdogan's government is trying to win over Turkey's Kurds - who make up 20 percent of Turkey's population - by granting them more cultural rights. Apparently, Turkish officials have reportedly held secret talks with an imprisoned Kurdish rebel chief to try to end the bitter fighting with his autonomyseeking rebels. According to UK trial observers, at best the Turkish government is supporting the prosecutions because many of the defendants are members of the opposition and next year is another election year. At its worst, the trials are wholly political, "to destroy or curb all activities and initiatives developed within the Kurdish population, and demolish its key institutions and vital civil society organisations," said the UK delegation, which includes MPs, lawyers and human rights activists.

The Kurdish rebel group has recently declared a unilateral ceasefire in hopes of opening a dialogue but Turkey has ignored it. Forty Turkish journalists currently in prison are awaiting trial on charges of violating the Turkish penal code or anti-terror laws through their work as journalists, says the European Federation of Journalists (EFJ), the European arm of the International Federation of Journalists (IFJ). More than 700 Turkish journalists are facing lawsuits with the threat of imprisonment. Join EFJ and its affiliate, the Turkish Journalists Union (TGS), in calling for the immediate and unconditional release of the journalist prisoners.
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Reporters Without Borders is appalled to learn of the surreal 138-year prison sentence passed against EminDemir, former editor of Turkey’s sole Kurdishlanguage daily AzadiyaWelat, for “propaganda in support of Kurdish rebels” and “belonging to a terrorist organisation”. Demir, aged 24, was charged with supporting the cause of the Kurdistan Workers’ Party (PKK), seen as a terrorist organisation by a number of countries, including Turkey, the European Union and the United States. The court issued a warrant for her arrest since she did not attend the hearing. The journalist has the right to appeal against her sentence. Her lawyer, ServetOsen, has called for his client’s acquittal in the name of freedom of expression. He stressed that Demir was not under orders from the (PKK) and that her articles should be viewed as reporting and not as acts of propaganda. She was sentenced on 30 December 2010, under Article 314 of the Turkish criminal code and Article 7 paragraph 2 of the anti-terror law (LAT), to 18 months in jail for each one of 84 articles written between 2008 and 2009. Reporters Without Borders repeats its condemnation of Turkey’s abusive and insane use of the anti-terrorist law. The newspaper AzadyiaWelat has already been suspended eight times by the Turkish justice system. At least nine of its journalists are currently in prison, including two other former editors, sentenced on similar charges to those against Demir, to unbelievable sentences. VedatKursun was sentenced on 13 May 2010 to 166 years in prison. OzanKilinç was sentenced in his absence on 9 February to 2010 to 21 years in prison. He was also stripped of his civic rights. The three ex editors have now been sentenced to a total of 325 years in prison between them. This judicial harassment of the country’s sole Kurdish-language newspaper contrasts with political statements in support of openness towards the Kurdish minority that have been made since 2009. The Kurdish question remains taboo and is used as a pretext for legal proceedings against too many media and journalists in Turkey.

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Editor of the newspaper Hawar and Aram Publishing owner, BedriAdanir, faces 50 years in jail for publishing articles about the PKK and publication of books collecting defence arguments at the ruling on the trial of PKK leader, Abdullah Öcalan, before the European Court of Human Rights (ECHR). The trial of Adanir, in custody since 5 January 2010, is to resume on 3 March 2011. Journalist BerivanEker, former editor of RengeHeviyaJine, is also at risk of a 21year jail sentence. She was arrested on 5 December 2010 and charged with “membership of the PKK” and making “propaganda for the organisation”. Her trial is due to open on 25 January 2011. The prosecutor argues that she committed an offence in the name of the organisation even if she is not actually a member of it. This shows yet again the misuse of the anti-terror law, the content of which is already reprehensible. This unfairness has moreover been at least half admitted through the release of journalist ErdalGüler, former editor of the daily DevrimciDemokrasi. The Istanbul appeal court on 26 October ruled that he had not been informed of the sentence against him in 2007 in conformity with the law. Even though this release should be widely welcomed, it illustrates the dissensions within Turkey’s judicial apparatus when the law is hijacked for political reasons. Reporters Without Borders calls on the appeal court in Diyarbakir to cancel the arrest warrant against EminDemir and on the appeal court to reject the iniquitous and disproportionate sentence against the journalist. The organisation repeats its call for amendments to the anti-terror law and for the release of BerivanEker, BedriAdanir, VedatKursun, OzanKilinç and all the other journalists imprisoned under this law for their work as journalists.

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An Overview of Kurds and the Court

As a by-product of its existence as a European Court, only citizens of countries that are signatories of the European Convention on Human Rights (European Convention) have the opportunity to bring suits under its jurisdiction.[4] In addition to only part of Kurdistan being capable of voicing grievances in front of the court, as a court without binding authority over domestic legal systems, the scope of the ECHR is also limited. There is no mechanism as of yet for the ECHR to send a human rights violator to jail, for example. That is to say that those individuals who are found culpable of violations at the ECHR may never be adequately punished for crimes such as murder or torture, and the structural features in any given country that feeds this sort of behavior do not immediately change as they would in a domestic court system. This being said, some structural changes have come about as a result of judgments in front of the ECHR. For example, Turkish authorities have acknowledged that it was the decision in Aksoy v. Turkey[5] which encouraged new legislation changing the amount of time a person can be held in police custody without access to an attorney.

The ECHR’s main punitive capacity results in its ability to assign monetary judgments against violating states. As a result of the numerous judgments against Turkey, the Turkish state (who is defendant to these suits in particular) has been required to pay hefty compensation. In August of 2002, the Turkish government had reported that it had already paid 4 trillion Turkish Lira ($2.5 million) in compensation as a result of the Court’s rulings, a number which has likely grown significantly since that time.[6] These cases have been brought in the areas of Extra-Judicial Killing, Death in Custody, Disappearance, Torture, Destruction of Property, and Freedom of Expression and Association.

Furthermore, the cases brought in front of the Court have served as a reliable written record of longstanding and continuing human rights violations of Kurds in
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Turkey. This record will play a pivotal role in Turkey’s longstanding reputation in Europe, and most notably, its accession to the EU.

According to many commentators, the work done by Kurdish groups such as the Kurdish Human Rights Project [7] in front of the ECHR has been both groundbreaking in the world of human rights for minorities in Europe, but also groundbreaking in establishing the extent of the ECHR’s influence. In particular, the work of Kurdish groups bringing cases against Turkey, over 300 of them in total, have pioneered the path of private party civil suits in front of the Court. Some of the attorneys who have been involved in these cases have gone on to become authorities on the Courts inner workings, and have published books to this end. [8]

As a result of this single block of applications that can be accurately grouped under “Kurdish Human Rights”, Turkey has become the country with the most human rights violations lodged against it in all of the ECHR’s rolodex.[9] A number of these cases stand out as trend setting and groundbreaking both in the realm of Kurdish human rights in Turkey, and in terms of human rights legislation in Europe generally.

AKSOY v. TURKEY, 1996- Expression, Unlawful Detention and Torture.

Ibrahim Aksoy, a Kurdish journalist and parliament member representing the People’s Labor Party (HEP), brought his grievances to the ECHR in 1995 alleging repeated abuse at the hands of Turkish authorities as well as violations to his right of free expression. The case was reviewed first on grounds that the plaintiff endured torture at the hands of Turkish authorities, and was also separately reviewed on grounds of violation of freedom of expression. The plaintiff was ultimately successful on both complaints. [11]
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Aksoy was convicted under a Turkish law outlawing the dissemination of separatist propaganda three times. In the first instance, he was arrested and convicted after making a speech at an HEP party rally. In the speech, he announced that the Turkish state’s long time policy of denying the existence of the Kurds and a Kurdish problem led to a large part of the problems the Turkish Republic faced, and that a solution to this problem would benefit both Turkey and the Kurds. In addition, he referred to the Kurds as the “les peuples les plus opprimés de cettesociété”.[12] The Turkish court ruled that his speech was racist and hateful, a crime punishable by jail time and fine. His second conviction was related to an article he published drawing comparisons between the plight of Kurds in Turkey to Bosnia, implicitly arguing that international intervention would be appropriate. For this, he was convicted of inciting violence. In his third sortie at the Turkish court, he was convicted of separatist propaganda for a party leaflet he wrote regarding possible solutions to Turkey’s economic and social problems, which included recognition of minorities and liberalization.

After reviewing the arguments on both sides and the relevant documents upon which Aksoy had been convicted, the Court held that each of his convictions had been unlawful under Articles 10 and 41 of the European Convention covering freedom of expression and just satisfaction. The Court ruled that Aksoy had acted properly in his capacity as a politician in Turkey on the political stage, stating

“Il a soutenu… que « le problème du peuplekurdeest un problème national, il combat pour acquérirsesdroitsdémocratiques qui sontusurpés ». Pour la Cour, ilestclairque les propos en question ont la forme d’un discourspolitique, aussibien par son contenuque par les termesutilisés”.[13]

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They went on to say that “la libertéd’expressionconstituel’un des fondementsessentielsd’unesociétédémocratique”[14], and since Aksoy wanted to carry on his agenda “dans le respect des règlesdémocratiques, de manièrepacifique et équitable”[15], Turkey’s claims of inciting violence and separatism were unfounded. Due to Ibrahim Aksoy’s abusive and unlawful detention without council or arraignment, as well as his unlawful convictions, he was awarded £57,639 in damages.

As one of the earliest cases involving Turkey and human rights, the Aksoy case was revolutionary in the ECHR’s willingness to criticize Turkey’s state policy directly. The ECHR’s finding liability on grounds of freedom of expression was considered highly contentious. Moreover, the finding of torture due to a combination of abuse in jail and unlawful detention was groundbreaking in its capacity as a pro-plaintiff standard of care. In 1996 when this decision was made, it was the first time a state had been found guilty at the ECHR of torturing an individual. The Court broke new ground in making the decision, to say the least, as it cited no direct precedents. Aksoy remains a strong precedent in the ECHR’s standard of care regarding torture.

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AYDIN v. TURKEY, 1997- Rape as Torture.

The case of Aydin v. Turkey involves a 17 year old woman of Kurdish origin in Southeastern Turkey who was forcibly removed from her home and taken into custody for questioning regarding her relationship with the outlawed Kurdistan Workers Party, or PKK.[17]

Upon arriving at the police station, Aydin alleges that she was stripped, beaten, tortured, and raped during her questioning. She was eventually released without being charged of any crime. She decided to take her case to the public prosecutor in her region soon after the incident. After being examined by three doctors for purposes of verification of claims (itself an invasive procedure), it was determined that given the widespread bruising and hymen being abrasively torn, she had been raped. The other two doctors concurred. Even given this information, the public prosecutor decided not to pursue the case.[18]

With the help of expatriate Kurdish groups, the plaintiff then decided to bring her case to the ECHR. By the mere success of forcing acceptance of jurisdiction of the case and consent to review by the ECHR, the case was declared a breakthrough by human rights groups who had spent years working with the Court. This was due to the Court’s prior unwillingness to deal with cases of alleged rape due to a lack of a specific rape clause in the European Convention.[19] In the end, the Court accepted the plaintiff’s claim that the treatment she endured amounted to torture.[20]

The ECHR held that, based on facts established by the European Commission, the applicant’s treatment while in Turkish custody constituted torture as defined by Article 3 of the European Convention.[21] In addition, the public prosecutor’s inadequate pursuit of the plaintiff’s claims violated Article 13 which ensures
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adequate remedy by national authorities. The court claimed that torture was not allowed “in absolute terms”[22], and there were no exceptions to this principle, and even if there were allegations of terrorism, degrading and inhuman torture was not acceptable. The court also noted a nexus between Article 3 violations and Article 13, stressing the importance of national authorities providing a voice to plaintiffs in national courts.

This case decision changed for the first time the status of rape in international law as qualifying separately as torture, as opposed to a mere criminal act. The Court relied on no direct precedent in making this decision. In that sense, it can be seen as revolutionary. As the Turkish government had been accused of commonly using rape as a form of ensuring complacency among Kurdish women, this ruling is highly important. As a result of this judgment, £62,360 in damages were awarded to the plaintiff. [23]

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OZGUR GUNDEM v. TURKEY, 2000- Positive Obligation to Protect Freedom of Expression.

Another case that involved the freedom of expression of journalists in Turkey, OzgurGundem v. Turkey involved the closing of the first Kurdish language newspaper in Diyarbakr. The staff of OzgurGundem alleged that they were subject to attacks, arson to their building, and even murder in the course of their journalistic work. The complaint states that even if the Turkish state did not organize the attacks, their complacency amounted to a violation of Articles 10 (freedom of expression) and 14 (anti-prejudice) of the European Convention. They therefore were alleging that apart from allowing the Kurdish newspaper to exist, there was a positive obligation to protect free expression.[25]

While the Court did not find a violation of Article 14, judging that there was no proof and no reason to conclude that Turkish complacency resulted from the Kurdish origin of the journalist, it did find a violation of Article 10. The Court reasoned that the facts suggested the Turkish authority did not take enough adequate investigative and protective measures to protect the newspaper. It said that even if the Turkish state was incapable of protecting the newspaper from attacks at all times, their various disproportionate compulsory measures on the newspaper suggested that they were singled out for abuse. In particular, the newspaper had been summoned and prosecuted numerous times due to “illegal content”.[26]

Under Article 41 of the convention, the plaintiff’s received pecuniary and nonpecuniary damages, as well as legal fees. More importantly however, the OzgurGundem decision sends a clear message to the Turkish government that its long-time policy of attributing attacks on non-governmental groups is punishable as a violation itself. Hence, the case places on Turkey for the first time a positive
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obligation to protect freedom of expression within its borders, or else risk facing suit at the ECHR.

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ACAR v. TURKEY, 2003- Challenge to ECHR’s Review Procedure[27]

Acar v. Turkey is a case that marks an important change in the ECHR’s procedure with regard to review of cases. It involves one of the many cases of “disappearance” in Turkey involving Kurdish citizens.

The story involves a Kurdish farmer who was, according to eye witnesses, forcibly taken by two armed men and driven away in broad daylight. According to his brother who pled on his behalf, after turning on in jail weeks later, he was reportedly held in detention and repeatedly being abused without ever being charged. In addition, he was allegedly not receiving much needed medical attention.[28] The applicant claimed violations of numerous Articles of the European Convention.

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OCALAN v. TURKEY

The case involving Abdullah Ocalan, the former leader of the Kurdistan Workers Party (PKK), is perhaps the most well publicized case involving the Kurds in Turkey. Living in Syria and leading a military campaign against the Turkish government for greater political and economic rights (not independence), Ocalan’s shelter nearly caused a war between Turkey and its neighbor, and the PKK’s uprising led to military rule in the Eastern Provinces that partially lasts to this day.

The case against Ocalan marked a monumental opportunity for the Turkish government to make an example of its most notorious “terrorsist”. In Turkey, the case was viewed as a strictly domestic concern in which the international or European community should play no part. Turkish newspapers reacted angrily to the insistence of the European Commission that the trial should be held publicly and fairly. The Turkish government had spent years building Ocalan up as the man who caused the death of thousands of Turkish civilians (mostly of Kurdish origin) and pressure was on to exact revenge of sorts on the PKK leader. Unsurprisingly, making his first public appearance since his capture days earlier, Ocalan was dazed and visibly shaken, speaking in the Turkish language against the expectations of many international observers. It appeared that partial punishment had already been exacted behind bars. Within months after Ocalan’s capture in Kenya, and blindfolded transport to Turkey, he was convicted and sentenced to death by a Turkish court, allegedly enduring torture and lack of access to counsel along the way. [30]

After his conviction in the Turkish high court, Ocalan’s lawyers lodged a complaint at the ECHR. The official complaint to the Court cited four violations: (1) the death penalty is in violation of the European Convention, (2) there was improper handling of Ocalan’s detention and access to a court, (3) there was a lack of a fair
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trial, (4) and lack of proper access to counsel.[31] After a frenzied media coverage, and physical altercations inside and outside of the court house, the Court issued its decision. It held that there had been a violation of Article 3 of the European Convention concerning the imposition of the death penalty, a violation of Article 5 §3 and §4 with regards to detention, and violation with regard to Article 6 §1 with regards to a fair trial. In effect, the Turkish government had been vetoed by the ECHR.

While a retrial never took place in the case of Ocalan v. Turkey, several important developments demonstrating the influence of the ECHR over Turkey took place. Firstly, it was precisely due to Europe’s influence and the ECHR’s deliberation of the case that the likelihood of a formal execution was immediately, and greatly, reduced. After the death penalty was given to Ocalan, in fact, the death penalty was abolished in Turkey, largely due to the work of the European community and the ECHR in leading up to its formal ruling. [32] In addition, while refusing to retry Ocalan, Turkey began its nascent reform program in the Kurdish region shortly after the trial. This move was largely seen as a technique to divert attention from the fact that Turkey was not abiding completely by the ECHR’s decision in the Ocalan case, and to placate the European Community. Thus, even if not entirely effective for Ocalan himself, the decision in the Ocalan case can be thought of as an impetus for change in the Kurdish region. After the claims were made by the plaintiff, the Turkish government sent a letter to ECHR claiming it would make a payment to the plaintiff and investigate his case and other like cases. As a result, the ECHR under its lax “strike out” standard dismissed the case stating that it was no longer necessary to consider examination of the matter. Considering the case decision inadequate, the plaintiff appealed the decision by the court to the Grand Chamber of the ECHR for review. The lawyers for the Kurdish plaintiff argued that, without admitting guilt as the defendant in a suit, the fundamental rights that have been breached are not remedied. The Grand Chamber agreed, and remanded the case to be reviewed on its merits. The Grand Chamber’s decision raised the standard to a significant
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degree for cases in which strike out is being considered, and this is likely to be codified in upcoming reforms that the ECHR plans to undertake. [29]

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The prosecution of hundreds of officials, activists, and elected mayors from the
pro-Kurdish Peace and Democracy Party (BDP) highlights the problems associated with Turkey's overbroad antiterrorism laws, Human Rights Watch said today. The trial of the 152 defendants in Diyarbakir Heavy Penal Court for alleged links to the armed outlawed Kurdistan Workers' Party (PKK) is set to resume on April 19, 2011. (106)

The 152 defendants have been in prison for periods of up to two years, and include six democratically elected mayors from BDP, which is legal and has members in parliament. Hundreds more officials from the party and its predecessor, the Democratic Society Party (DTP), are in prison as part of other related trials. The prosecutions demonstrate that the antiterrorism laws are incompatible with human rights guarantees, Human Rights Watch said.

"The use of terrorism laws to prosecute sitting mayors and other BDP officials is both troubling and all too familiar," said Benjamin Ward, deputy Europe and Central Asia director at Human Rights Watch. "Without compelling evidence of violent activities, it's hard to see the prosecution's effort to link this legal party with an illegal organization as anything but a clampdown on legitimate political activity."

The defendants are accused of membership of the Union of Kurdistan Communities/Turkey Assembly (KCK/TM), an alleged front organization for the PKK. Of the 152 people on trial, 104 have been held in prolonged detention. Fiftythree arrested in April 2009 have been in prison for two years, while others were imprisoned after three subsequent waves of arrests in 2009. The six elected mayors from cities in southeast Turkey and MuharremErbey, the head of the Diyarbakir branch of the Human Rights Association and vice president of the organization nationally, have been in prison since their arrest in December 2009.
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Human Rights Watch has particular concerns about the detention of the six mayors: NejdetAtalay of Batman; ZülküfKaratekin, of Diyarbakır Kayapınar municipality; AydınBudak of Cizre; EthemŞahin of Suruç municipality; LeylaGüven of ViranşehirMunipality; and FerhanTürk of Kızıltepe municipality. Four other mayors are also on trial, but not in detention. They are Osman Baydemir of Greater Diyarbakir Municality, Abdullah Demirtaş of Sur Municipality, YükselBaran of Bağlar Municipality, and SelimSadak of Siirt.

The trial has barely progressed during 20 hearings since October 2010. It has been delayed in part because of the insistence by many of the defendants on addressing the court in their mother-tongue, Kurdish. The court has ordered them to speak Turkish, though other courts in Diyarbakır have permitted defendants to give evidence in Kurdish.

The trial raises a series of fair trial concerns common to cases involving terrorism charges, including prolonged pre-trial detention and limitations on access by defendants and their lawyers to the evidence against them, Human Rights Watch said. These cases are tried in special heavy penal courts, formerly known as State Security Courts until their abolition in 2004, whose remit is terrorism offenses and organized crime.

There are also concerns about the way in which the criminal investigation was conducted, Human Rights Watch said. Judges repeatedly granted the police permission to keep hundreds of suspects under surveillance and to intercept their telephone calls and communications without properly assessing and justifying "reasonable grounds for suspicion" in individual cases.

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Human Rights Watch documented the arbitrary use of terrorism laws to restrict freedom of expression and assembly and to punish demonstrators as though they were armed militants in a November 2010 report,"Protesting as a Terrorist Offense: The Arbitrary Use of Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey." Many of the same concerns apply in the case of the KCK trials in relation to the restriction on the right to freedom of association.

Turkey's Anti-Terrorism Law contains a vague and overbroad definition of terrorism, Human Rights Watch said. Furthermore, court interpretations of the law make its misuse more likely. After a visit to Turkey in 2006, as the law was being revised, Martin Scheinin, the UN special rapporteur on the protection and promotion of human rights and fundamental freedoms while countering terrorism, expressed concern about the definition and recommended that "the definition of terrorist crimes should be brought in line with international norms and standards." He said that such crimes should be confined to "acts of deadly or otherwise grave violence against persons or the taking of hostages."

"The KCK case underscores that the problems the UN identified with Turkey's terrorism law have not gone away," Ward said. "Turkey urgently needs to amend its vague and widely drawn terrorism laws and stop using them to try to silence and marginalize political activists for acts that by no stretch of the imagination can be called terrorism."

Human Rights Watch (106) unequivocally condemns the October 31, 2010 suicide bomb attack in Istanbul. It is essential that Turkey's response targets the perpetrators, not legitimate dissenters, Human Rights Watch said. A Human Rights Watch report released today documents the use of anti-terror laws to
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prosecute hundreds of Kurdish demonstrators as though they were armed militants, violating free expression, association, and assembly.

The 75-page report, "Protesting as a Terrorist Offense: The Arbitrary Use of Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey," is based on a review of 50 cases. It describes 26 cases of individuals prosecuted for terrorism even though they had nothing to do with violence such as the October 31 attack, but simply for taking part in protests deemed by the government to be sympathetic to the outlawed armed Kurdistan Workers' Party (PKK). Hundreds of Kurdish demonstrators are currently in prison pending the outcome of their trials or appeals against convictions. Others are serving long sentences that have been upheld by Turkey's top court of appeal.

"When it comes to the Kurdish question, the courts in Turkey are all too quick to label political opposition as terrorism," said Emma Sinclair-Webb, Turkey researcher at Human Rights Watch and author of the report. "When you close off the space for free speech and association, it has the counterproductive effect of making armed opposition more attractive."

Over the past three years, courts have relied on broadly drafted terrorism laws introduced as provisions of the 2005 Turkish Penal Code, plus case law, to prosecute demonstrators. The courts have ruled that merely being present at a demonstration that the PKK encouraged people to attend amounts to acting under PKK orders. Demonstrators have been punished severely for acts of terrorism even if their offense was making a victory sign, clapping, shouting a PKK slogan, throwing a stone, or burning a tire.

The report calls on the Turkish authorities to amend the laws that have resulted in the arbitrary and punitive application of terrorism charges against demonstrators,
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to suspend ongoing prosecutions against demonstrators under these laws, and to review the cases of those already convicted.

Following domestic and international criticism over the prosecution on terrorism charges of children who attended Kurdish demonstrations, parliament amended the laws in July to quash such convictions and prevent the prosecution of children in courts that specialize in terrorism cases.

But the laws otherwise remain unchanged, including article 220/6 of the Turkish Penal Code, prohibiting offenses committed on behalf of the PKK, which is used to prosecute demonstrators in conjunction with article 314/2, criminalizing armed membership in the organization.

"Ending the prosecution under these laws of most child demonstrators was an important step forward," Sinclair-Webb said. "But allowing laws clearly aimed at terrorism to be used against adult demonstrators inflicts immense damage on free expression, assembly, and association in Turkey."

Among the cases cited in the report are the following. In each case, the court concluded that the individual joined the demonstration under PKK orders because of news reports in advance of the demonstrations saying the PKK urged people to take part.

•A university student, Murat Işıkırık, is serving a sentence of six years and three months for making a victory sign at the March 2006 funeral procession in Diyarbakır for four PKK members, and clapping during a March 2007 protest on the campus at Diyarbakır's Dicle University.
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•A mother of six, VesileTadik, was sentenced to seven years for holding up a banner with a slogan "The approach to peace lies through Öcalan" during a December 2009 protest in Kurtalan, Siirt, against the prison conditions of the imprisoned PKK leader. Her case is on appeal. •MedeniAydın shouted, "Long live Chairman Öcalan" at a similar demonstration on the same day in Eruh, Siirt, and was sentenced to seven years. He is in prison pending his appeal. At the same demonstration SelahattinErden was similarly punished for holding the edge of a banner with a pro-PKK slogan. He too remains in prison pending his appeal. •FatmaGökhan, TufanYıldırım, and FeyziAslan received sentences ranging from 10 years and 5 months to 11 years and 3 months for shouting slogans, making victory signs and throwing stones during a March 26, 2008 demonstration in Diyarbakır. Their convictions for "committing crimes on behalf of the PKK", punishable as "membership in an armed organization," have been upheld, and they will serve at least seven years in prison, with an ongoing retrial on other charges against them following a July 2010 amendment to the Law on Demonstrations and Public Assemblies.

The ongoing prosecutions of demonstrators are part of a wider crackdown on pro-Kurdish legal political parties for alleged ties to the PKK. On October 18, 152 members and officials of the Democratic Society Party, which was closed by the Constitutional Court in December, 2009, and its successor, the Peace and Democracy Party, which has 20 members in parliament, went on trial in Diyarbakır on charges ranging from separatism, to membership of an armed organization, to aiding abetting that organization.

The defendants include serving and former mayors, a prominent human rights defender, and lawyers. Six of the serving mayors and a human rights defender were arrested last December and have been detained since that time. Another
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53, including the lawyers, have been detained since April 2009. Across Turkey around 1,700 party members are in detention facing trial on similar charges. "The government should complete the task of reform by changing laws relating to adult demonstrators, to bring them fully into line with Turkey's human rights obligations," Sinclair-Webb said. "Throwing people in jail is no way to halt terrorism - or protest."

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Conclusion

The human rights environment of Kurds in Turkey, while progressing slowly, lags significantly behind that of other ethnic minorities in Europe. As a country that does not even recognize the existence of its Kurdish minority, the ECHR is a “twilight zone” of rights and remedy for the Kurds in Turkey. It is hence no surprise that Kurdish plaintiffs have both lodged more complaints at the Court than any other group, and that they have made significant headway both in terms of Kurdish human rights and mastery of the Court itself. While often times contributing to the development of European legal jurisprudence, Kurdish human rights groups have found the ECHR a useful tool in the long term quest for recognition and remedy in Turkey. Turkey in turn is being pushed in the right direction, albeit slowly, by being under ECHR jurisdiction. In light of slowing EU accession negotiation, the ECHR may be the most important impetus for human rights change in Turkey in the next decade or so, and is currently the only venue Europe has offered the Kurds to directly voice their grievances. In this sense, the ECHR should also be seen as an innovative example for the encouraging Turkey to engage its ethnic minority problem directly, particularly the one involving the Kurds, in EU accession negotiations themselves.

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