Does Strasbourg Court’s Priority Policy Work Well?

Cafer Tekin Ipek has been deprived of his liberty since April 2016.

The European Court of Human Rights is overwhelmed with enormous and ever-growing caseload. According to the Court’s (2019) statistics, as of  31 December 2019, there are 59,800 cases pending before the Court filed against 47 member-states. At least 37.7 % of all pending cases are filed against Russia and Turkey, respectively 15,050 and 9,250 cases.

In June 2009, the Court adopted a priority policy for speeding up the processing and adjudication of the most important, serious and urgent cases. This policy was reformed in 2017. The essence of the reformed policy is to concentrate more resources on the most important cases, namely the cases falling within the top three categories (“priority applications”), namely:

I)    Urgent applications: in particular risk to life or health of the applicant, the applicant deprived of liberty as a direct consequence of the alleged violation of his or her Convention rights, other circumstances linked to the personal or family situation of the applicant, particularly where the well-being of a child is at issue, application of Rule 39 of the Rules of Court,

II)  Applications raising questions capable of having an impact on the effectiveness of the Convention system or applications raising an important question of general interest,

III)   Applications which on their face raise as main complaints issues under Articles 2, 3, 4 or 5 § 1 of the Convention (“core rights”), and which have given rise to direct threats to the physical integrity and dignity of human beings,

As of 31 December 2019, 24,424 of the 59,800 pending cases are categorized as priority applications. According to the Court, the high number of priority cases are mainly because of the applications allocated concerning conditions of detention in Russia and the lawfulness of detentions in Turkey.

If over 24,000 applications are categorized as priority cases, how does the Court set its agenda of trial?

Recently, the Court delivered its final decision in the case of Mr. Osman Kavala (Kavala v. Turkey) who is a prominent civil society leader, and has been deprived of his liberty since 18 October 2017. Considering that his lawyers applied to the ECtHR in June 2018, all procedures including Turkey’s request for appeal have been completed in 23 months by the Court. Although such speediness is commendable, the Court has not shown a similar performance in other priority cases. There are even some cases which have not been communicated to the respective Government in two-three years.

Cafer Tekin Ipek has been deprived of his liberty since April 2016.

Cafer Tekin Ipek has been deprived of his liberty since April 2016.

For instance, the case of Cafer Tekin Ipek is exemplary. in that regard. Mr Ipek was a philanthropist and the partner of Turkey’s Ipek Media Group which was seized by the Turkish Government in November 2015

Mr Ipek returned to Turkey even after the companies which he is partner were seized and even though he was aware that he could be prosecuted. Later on, he was detained at his residence in Istanbul on the very same day that his lawyers were off to Strasbourg to file an application on the seizure of his 18 companies. Case files to be submitted to the ECtHR were seized and copied by the police at the airport. What is worse, the pro-government daily, Sabah, reported this development with a headline of “Boxes of Betrayal”. 

Sabah Daily, 30 April 2016.

Sabah Daily, 30 April 2016.

The news alleged: They were going to complain about Turkey to ECHR based on false accusations. In the airport, police seized 18 boxes of documents prepared by Cafer Tekin Ipek before his arrest in order to complain about Turkey to ECHR based on false accusations… After extending the scope of the investigations against Ipek following the detention, police officers from the financial crimes department determined that 18 boxes of documents were delivered to cargo by Tekin Ipek before being arrested. It has been stated that 18 boxes of documents seized are being reviewed by the police.

The Turkish public prosecutor who interrogated the applicant directed to him the following questions:

a.    What was your purpose for founding the television channels named Kanalturk and Bugun TV and newspapers Millet and Bugun owned by you?

b.   Were you disturbed by the programs made by television channels Kanalturk and Bugun TV and articles published in newspapers Millet and Bugun? Did you take any steps towards changing the media policies?”

c.    What was the purpose of establishing the University? Did you receive any order or instruction from anyone for establishing Ipek University?

According to The Court’s privacy policy, an applicant who was deprived of his or her liberty as a direct consequence of the alleged violation of his or her Convention rights is evaluated within the scope of “the Category I (urgent)”. Mr. Tekin İpek has been deprived of his liberty since 25 April 2016. As I noted above, Mr. Ipek was asked many questions which at first sight had no connection with criminal events. Alas, they relate to the exercise of his rights and freedoms under the European Convention of Human Rights, namely the freedom of expression and peaceful association.

The case which led to Mr. Ipek’s detention and seizure of the Ipek Media Group was a milestone on the Turkey’s ruling party, AKP’s crackdown on free media. Application on the detention of Mr. Ipek well should be deemed as a priority case and his lawyers made two requests in that regard. However, his case is pending to be communicated to the Turkish government. On the other hand, the Court should be mindful of the perception, which is widely shared in Turkey, that in addition to meeting the legal requirements, support from international community is also a necessary prerequisite for a specific case to be regarded as an urgent by the Court. Such perception might undermine the credibility of the Court and human rights defenders. The Court, therefore, should be more transparent when setting its agenda, and should provide reasoned responses when accepting or refusing requests for urgent proceedings.