Turan and Others v Turkey and the Limits of Judicial Policy to Address Judicial Overload

26 January 2022
Turan and Others v Turkey and the Limits of Judicial Policy to Address Judicial Overload

By Toby Collis, Lawyer at the European Human Rights Advocacy Centre; originally published in Strasbourg Observers, January 18, 2022.

Should the European Court of Human Rights (‘ECtHR’ or ‘the Court’) dispose of a complaint by resorting to judicial policy reasoning to prevent judicial overload? A recent decision of the Court – Turan and Others v Turkey – handed down on 23 November 2021, brings this issue into sharp focus, not due to what the Court found by way of violations, but by what it explicitly chose not to find. It did so openly and explicitly for reasons of pragmatism, particularly to avoid judicial overload. Was it right to do so? And, even if not supported by principle, was this the only real option available to the Court? To address these questions, this piece first outlines the opinion of the majority, but more critically sets out in detail the robust and well-reasoned minority opinions that side with the majority only through gritted teeth. Like the minority opinions, I concede that the decision based on judicial policy was, on balance, one of the few options left to it, but suggest that only broader systemic reforms can adequately address this issue of judicial overload by repetitive applications.

Background and the Majority Decision

The case arose out of the arrest and pre-trial detention of judges and prosecutors in Turkey in the aftermath of the attempted coup of 15 July 2016. These detentions – as well as thousands of others – led to a veritable flood of applications to the Court. The Court, in this case, joined 427 applications. This context – the sheer number of applicants both in this case and, more broadly, concerning post-coup arrest and pre-trial detentions – is highly relevant.

The applicants, who were all judges or prosecutors at different types or levels of the domestic courts,  were arrested and placed in pre-trial detention under different legislative regimes, depending on whether they were (i) ordinary judges and prosecutors, or (ii) members of the Court of Cassation and Supreme Administrative Court. Despite the different regimes, the justification for detention provided by authorities was the same: that the applicants were discovered in flagrante dilicto (i.e. during the act of wrongdoing). As to what wrongdoing they were accused of, domestic courts have made various interpretations, but essentially they relate to continuing offences of membership of  the FETÖ/PDY organisation (alleged to be behind the coup), which was a criminal offence, or by strained reasoning that they were part (and continued to be part) of the coup attempt itself by virtue of this alleged (and unproved) membership.

The Court found that, whist the applicants were arrested and deprived of liberty under procedures prescribed by law, the domestic interpretation of the notion of in flagrante dilicto was unlawful, as it was unreasonable and breached the principles of legal certainty, thus not enjoying the ‘quality of law’ required by Article 5(1) of the Convention. This violation of Article 5(1) was unsurprising, given that the Court had already found identical violations in previous Turkish cases (Bas v Turkey; Alparslan Altan v Turkey).

However, the remarkable aspect of the decision concerns further complaints made by various applicants under other sub-paragraphs of Article 5. In response to such complaints (at paragraph 98, which, due to its importance will be repeated in full):

‘The Court has found above that the applicants’ detention was not prescribed by law, which runs counter to the fundamental principle of the rule of law and to the purpose of Article 5 to protect every individual from arbitrariness. Having regard to the significance and implications of this finding, which goes to the heart of the protection afforded under Article 5 and entails a violation of one of the core rights guaranteed by the Convention, and to the accumulation of thousands of similar applications on its docket concerning detentions in the aftermath of the attempted coup d’état in Turkey, which puts a considerable strain on its limited resources, the Court considers – as a matter of judicial policy – that it is justified in these compelling circumstances to dispense with the separate examination of the admissibility and merits of each remaining complaint raised by each individual applicant under Article 5. The Court also points out in this connection that an individualised examination of the remaining complaints brought by each applicant would significantly delay the processing of these cases, without a commensurate benefit to the applicants or contribution to the development of the case-law. It notes furthermore that it has already addressed the legal issues raised by these complaints for the most part (see, in particular, Selahattin Demirtaş (no 2), Alparslan Altan and Baş, all cited above; Atilla Taş v. Turkey, no. 72/17, 19 January 2021). It is precisely within this exceptional context that the Court, guided by the overriding interest to ensure the long-term effectiveness of the Convention system, which is under threat by the constantly growing inflow of applications (see, mutatis mutandis, Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al, §§ 111, 119 et seq., 157 and 210, 12 October 2017), decides not to examine the applicants’ remaining complaints under Article 5.’

It is this paragraph, and the later operative provision that ‘there is no need’ therefore to examine the applicants’ remaining complaints under Article 5, that caused consternation from the concurring and partly dissenting judgments.

Minority Opinions

Leaving aside the partly concurring opinion of the Turkish Judge Yüksel (which relates to a disagreement on the lawfulness of the arrests and detention), the judgment contains two important minority opinions. The first is a concurring opinion by the Finnish Judge Koskelo, joined by Judge Ranzoni, and the second is a (particularly lengthy) partly dissenting opinion by the Lithuanian Judge Kūris, who dissented on the operative provision that there was no need to examine the further complaints. The two opinions cover essentially the same territory, namely whether this disposal of the complaints is comparable to other situations where the Court does not find violations (spoiler alert: it isn’t), and, if not, whether it was nevertheless justifiable (spoiler alert: it was). (They also cover other more minor issues, but these will not be considered here.)

As outlined by the minority opinions, this case was not analogous to other situations where the Court finds no Convention violations, including under the admissibility criteria (as the complaints were found admissible). It was also not analogous to the pilot judgment procedure, where one individual case is selected for review of systemic and structural violations underpinning it, and other cases are adjourned pending implementation of general measures to address the underlying issue. In the present instance, this case was not a pilot judgment. Moreover, Judge Koskelo found that there was no further domestic action that could have resolved the Article 5 issues – that is, a pilot judgment could not, in any event, have resolved the matter.

Nor was this case like those situations where the Court finds violation of some complained Articles of the Convention, but not others. These include:

  1. Cases where there is factual overlap between interrelated complaints, such that the Court need not re-examine the case from different angles. In these instances, it is jurisprudentially defensible (although from a practitioner’s standpoint, extremely disappointing) that the Court may find ‘no need to examine’ the overlapping claim. Both minority opinions found that in the case at hand there could not have been one of these overlapping situations, given that the other Article 5 complaints were ‘at the very core of one of the core rights’.
  2. Politically sensitive cases where the Court finds no need to examine Article 18 complaints, despite evidence pointing towards a ’hidden agenda’ behind the violations. This was not relevant for the given case, given no Article 18 complaints were made.
  3. Cases where the Court decides not to examine certain violations, without giving satisfactory reasoning or a principled justification for doing so, including the Câmpeanu formula that the Court will only examine the ‘main’ legal questions. This is not the case in Turan, as clearly the Court did give its reasoning, whether one agrees with it or not.

The closest this situation could be related to, and which the Court cites as supporting precedent for its decision to dispose of the complaints, is the 2017 case Burmych and Others v Ukraine (helpfully explained and analysed on this blog here and here), in which the Court struck out 12,148 repetitive cases of Ukraine’s failure to enforce final judgments. The similarity between the cases is that the Court made its decision based on pragmatism – the Court in Burmych holding that to continue to decide these cases would ‘affect the Court’s ability to fulfil its mission […] in relation to other meritorious applications’ (para 150) and ‘would place a significant burden on its own resources’ (para 174). However, as noted by Judge Kūris, the situations are not analogous in outcome: In Burmych, the cases were struck out pending continuing (albeit ineffective) supervision by the Committee of Ministers as a result of the earlier pilot judgment in Ivanov. Thus in Burmych there was some potential prospect of redress. In the present case, the non-Art 5(1) complaints will never be addressed (although as conceded by Judge Kūris, unlike in Burmych, the present case offers limited actual redress due to the finding of an Article 5(1) violation and an award of just satisfaction). The only similarities between the cases, in Judge Kūris’ words are that ‘the Court has adopted it also under the duress of reality, in which it has been left with no other choice, if the long-term effectiveness of the Convention machinery is to be ensured.’

Given that this situation is therefore sui generis, what then swayed the minority opinions to side with the majority? For Judge Koskelo, it was for reasons of pragmatism: that given the limits of the Court to process these claims, it is the only real option available to it. She states:

‘The decision not to examine the applicants’ other complaints raised under Article 5 of the Convention thus has a critically novel quality. I have nonetheless arrived at the conclusion that the time has come to acknowledge the reality as it presents itself: if alleged violations occur on a large scale and the rights concerned are no longer protected through domestic remedies, even the international supervision entrusted to the Court reaches its practical limits. The fact that core rights are at stake renders the state of affairs particularly sad and serious but cannot in itself change it. In circumstances where it has become clear that the complaints cannot, and therefore will not, be processed within a reasonable time-frame, or without paralysing the Court’s activity more generally, it is better to make this impasse transparent rather than maintain illusions about the situation. Any further conclusions remain for other bodies to consider.’ (para 116)

Judge Kūris undertook a much more nuanced and soul-searching analysis. He took as his starting position the principled position that in an ideal world, the Court should not substitute legal reasoning with judicial policy. But, in his words ‘the world is not a perfect place.’ (para 8). As a result of the precedent set by the Burmych decision:

‘the Court’s resolve to leave certain complaints unexamined in principle can be substantiated – if not duly legally reasoned, then at least factually explained – by referring to judicial policy considerations pertaining to very exceptional circumstances occurring in the realm of real life, not in that of pure law. Such a course is, to put it mildly, not a neat one from the purely legal(istic) perspective. But now it is part of the Court’s case-law. Needless to say that the circumstances in which the Court’s recourse to this method is defensible must be exceptional, indeed extraordinary.’ (para 10)

Judge Kūris concedes that the present case was one where such an extraordinary course was justified:

‘The decision not to examine the lion’s share of the complaints is an acknowledgment of the limits to the Court’s capacity in the face of the massive influx of applications. The reference to “judicial policy” (paragraph 98) means that the non-examination of complaints is determined not by any tenets of any Articles of the Convention, but by such reality, against which usual legal institutional and procedural mechanisms are helpless, unless the Court allows itself the dubious luxury of extending the examination of these complaints for at least a decade (but more likely for even longer) or (another most unattractive alternative) to postpone the examination of other meritorious complaints, at least those against the same State.

In that context it should be mentioned that today there are thousands of cases pending against Turkey which concern detentions and criminal convictions handed down in the aftermath of the 2016 attempted coup d’état in that State. Every week their number increases by scores. The Court is in fact inundated with cases related to those events. In addition to that tsunami, there is a yet larger pool of pending unrelated cases against Turkey.In such circumstances, the decision not to examine the complaints that consume the most time, effort and other resources is the only pragmatic way out. From the purely legal(istic) perspective, it is not a satisfactory one, and not easily defensible. But it can be explained by reference to reality.’ (paras 34-35)

Whilst Judge Kūris concurred with the majority in principle, he dissents because the justification provided for to dispose of the complaints (which he agrees with) should not have led to the operative provision that there was therefore ‘no need to examine’ the complaints.

Lastly (at least on this point), Judge Kūris reflects on the consequences of this development, that it is

‘a signal that a member State can escape responsibility for violating the Convention en masse, since the Court may be flooded with complaints against that State to such an extent that it becomes unable to cope with them and decides not to examine them. To be frank: if a regime decides to go rogue, it should do it in a big way. And if responsibility can be escaped by “doing it big”, why not give it a try?’ (para 38)

Whilst he is comforted that this case is exceptional, there is no reason why it may not become unexceptional. To this, Judge Kūris implores that ‘a remedy or safeguard, or counterbalance must be found – and applied. Needless to say, that remedy or safeguard, or counterbalance, cannot and must not be judicial. To that effect, I can but agree with Judge Koskelo that ‘[a]ny further conclusions remain for other bodies to consider’.

Comment

That the European Court of Human Rights decides an outcome for reasons of judicial policy is nothing new. Many of the examples outlined above, where the Court chooses not to find violations, are all implicit or explicit instances of judicial policymaking, either to reduce the caseload burden on the Court by only addressing the bare minimum complaints to dispose of the matter, or to avoid finding violations on politically sensitive issues. But in those cases, the Court justifies its decision (more or less convincingly) by jurisprudential considerations (issue overlap, main legal issues, etc), rather than extra-judicial considerations, such as judicial overload. Other methods the Court relies upon to not find violations (particularly pilot judgments) are all authorised under the Convention or the Rules of Court. Even in Burmych, even when the Court struck out the cases for reasons of judicial overload, it contorted itself into justifying its decision with respect to the respective functions of the Court and the Committee of Ministers vis-à-vis cases arising post-pilot judgments (again, whether this is convincing or will bring any justice is another question). The novelty of this case is that pragmatics alone largely justified the Court’s decision.

Perhaps the Court should be lauded at least for its candour and transparency, something missing from its sometimes Delphic practices. However, by justifying its disposal of the complaints by reason of the impossibility of its situation, the Court has exposed itself to charges of injustice, illegitimacy, and of failure to discharge its core responsibility of ensuring the right to individual petition.

Rather than lay the blame for this extraordinary decision on the Court itself, we should instead view this development within the context of broader attempts by the Council of Europe, its member States and the Court itself to reform the Convention system to deal with the continued issue of the backlog of cases, particularly the known failure to adequately deal with repetitive cases.

Serious attention to address the judicial backlog began in 2010, in the now-ended Interlaken Process. The Interlaken Declaration established an Action Plan to reform the Convention system to reduce its backlog. Since then, many processes have been put in place, generally to good effect. Processes introduced by the Court to reduce repetitive cases include the pilot judgment procedure (mentioned above) in 2011, and the well-established case law (WECL) procedure in 2014 to streamline the case management and to allow a judicial committee of three judges to swiftly issue shorter judgments on repetitive cases.

And yet, as identified by the Council of Europe Steering Committee for Human Rights (CDDH) in 2019, despite these measures, the backlog of repetitive cases before the Court remains a serious problem. Five, largely repetitive, subject matters account for 54% of applications pending before all judicial formations of the Court: conditions of detention, non-enforcement of domestic courts’ judgments, length of proceedings before the domestic courts, cases arising out of conflict between states, and cases arising out of the situation in Turkey in July 2016. The latter (which, of course, was the subject of this case) gets its own category as they alone represent 6% of the total number of cases pending. It is the sheer number of these repetitive cases that has placed significant stress on the functioning of the Court. It is clear that the current tools – mainly pilot judgments and the WECL procedure – are not adequately stemming this tide of repetitive applications.

So what should the Court do? The CDDH recommended in 2019 that ‘[t]he Court should … continue striving to optimise its working methods in order to handle this group of cases. It is important to guarantee, at the same time, that the parties’ rights in the proceedings are not curtailed by the simplified procedures and that the quality of the Court’s judgments and decisions is maintained.’ (para 113)

Of course, there is a balance to be struck here: there is only so much ‘optimising’ of working methods before the Court inevitably curtails the parties’ rights. Arguably in this case, the proper balance was not struck, and as argued by Başak Çalı here, a chamber judgment, where the rights of hundreds of applicants is at stake, is not the proper place to be having this urgent conversation about the survival of the Court. But perhaps in the face of these repetitive cases the Court can no longer strike the right balance, and apart from the soft diplomacy that the Court can leverage at the Council of Europe, a judgment is one of the few places where its cries can be heard. The potential injustice that the Court has resorted to in this case shows, in effect, that it has run out of tools to properly adjudicate these repetitive cases, particularly in cases where the pilot judgment process is not applicable, or where, as in Burmych, the pilot judgment system has arguably failed. In the present case, the Court was left with little option but dispose of the complaints in the way it did.

The conclusion drawn by the CDDH is that ‘further efforts are necessary by all actors in the Convention system’ to stem the tide of repetitive applications (para 232, emphasis added). This is correct: responsibility to address repetitive cases cannot lie with the Court alone. It is incumbent on the Committee of Ministers to better assist States to implement judgments disclosing systemic issues, and for States to promptly provide effective general remedies to resolve the systemic problems (CDDH para 114). In Judge Koskelo’s words, the solution is not for the Court, but for ‘other bodies to consider’. Until then, we may have to tolerate the injustice of decisions such as those found in Turan. Of course, how do we deal with those hypothetical (or some might say real) ‘rogue’ States that are, in Judge Kūris’ words, ‘doing it big’, and overloading the Convention system with cases against them? The only solutions are real political consequences for massive and systemic violations, and more robust consequences for failure to execute judgments. In waiting for these, I am not holding my breath.