A. Initial Applications under the Convention

Initial applications to Strasbourg focused on claims of religious discrimination in the way public housing was being allocated by local councils in Northern Ireland, with some Protestant-controlled councils tending to favour Protestant applicants. They also raised complaints about the ‘gerrymandering’ of electoral areas, whereby constituencies with a majority of Catholic voters elected fewer representatives than comparably-sized constituencies with a majority of Protestant voters. In addition, complaints were made about the draconian nature of some of the Regulations issued under the Civil Authorities (Special Powers) Acts (NI) 1922–44. Because the United Kingdom did not recognize the right of individual petition until 1966, the only hope of getting Strasbourg's attention on these issues before then was by bringing an inter-State case, but the Irish government refused to initiate such a case, despite being lobbied to do so by several prominent nationalists in Ireland, North and South.

Six applications were eventually lodged by individuals in 1968, and a further seven in 1969. But all of these came to nothing, mainly because the lawyers helping with the cases did not fully co-operate with the bodies in Strasbourg, and the European Commission eventually struck the cases out of the list.Footnote ¹⁰ An application lodged by a member of the UK Parliament representing a constituency in Northern Ireland, Bernadette Devlin, was declared inadmissible too.Footnote ¹¹ At her trial for inciting people to commit riotous behaviour she had been denied the right to call witness evidence to show that she was only trying to prevent illegal actions by the police, but the Commission sheltered behind the principle that national authorities have a wide discretion as to what evidence is or is not admissible at a trial. A further set of applications was lodged in Strasbourg in 1971 and 1972, raising, amongst other points, the retrospective legitimation by the Northern Ireland Act 1972 of illegal actions by British soldiers (allegedly in breach of ECHR Article 7) and the interference by British authorities in the correspondence between complainants and their lawyer.Footnote ¹² The former were dismissed on the basis that the applicants were non-victims (which also put an end to complaints about the Special Powers Acts and the overall conduct of the security forces in Northern Ireland); the latter failed for lack of evidence.

Early applications to Strasbourg from Northern Ireland seem to have foundered because they were not carefully enough formulated and managed. Given the youthfulness of the institutions applied to, there was, understandably, a degree of uncertainty as to what would or would not pass muster in Strasbourg, but, looking back, one might still have hoped that more convincing claims by deserving applicants could have been made out. Boyle, Hadden and Hillyard, writing in 1974, go some way towards explaining why the domestic legal system of Northern Ireland was failing the people who lived there,Footnote ¹³ but they might also have stressed the lack of knowledge about the European Convention at the time.

Subsequent applications were more successful, but by no means in every respect. We will consider them under the headings of the right to liberty, the right not to be ill-treated, the right to life and the right to a fair trial.

B. The Right to Liberty

In 1971 the use of internment without trial was authorized in Northern Ireland. Hundreds of men who were sympathetic to the cause of Irish republicanism were detained without trial, some for what turned out to be more than three years. The system did not end until 1975.Footnote ¹⁴ The same practice had been employed in the Republic of Ireland during an earlier bout of troubles (1956–62) and in the European Court's first ever decision, Lawless v Ireland,Footnote ¹⁵ the Court upheld the validity of the practice because Ireland had lawfully derogated from its obligations under Article 5 due to the ‘public emergency threatening the life of the nation’. The Court considered that ‘the natural and customary meaning’ of ‘other public emergency threatening the life of the nation’ was sufficiently clear: ‘they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed’.Footnote ¹⁶ It went on to hold that the Irish government did reasonably deduce from the facts and circumstances that an emergency should be declared. The Court did not expressly recognize a margin of appreciation for States but its light touch approach to testing whether there was a justification for the declaration of emergency amounted to the same thing. This light touch approach has occupied a crucial position within the Strasbourg jurisprudence ever since and has been a crucial barrier to more effective scrutiny by the Court of measures taken in both Northern Ireland and Turkey to counter the insurgencies in those jurisdictions.Footnote ¹⁷

Ironically, it was the introduction of internment in Northern Ireland that finally persuaded the Irish governmentFootnote ¹⁸ to raise an inter-State challenge against the United Kingdom in Strasbourg in 1971.Footnote ¹⁹ In 1972 the European Commission declared the bulk of the allegations admissible,Footnote ²⁰ but in 1976, more than four years after the application was lodged, the Commission unanimously decided that the measures for detention without trial, in derogation from Article 5 of the Convention were, indeed ‘strictly required by the exigencies of the situation’ under Article 15(1).Footnote ²¹ Although the internment tactic targeted only Republicans (not ‘Loyalists’) the Commission also rejected the argument that the way in which internment had been operated violated Article 14 of the Convention, read in conjunction with Article 5. The inter-State case was then referred to the European Court of Human Rights, but almost two more years were to elapse before its judgment was issued.Footnote ²² During that time there were 409 conflict-related deaths in Northern Ireland, 2,989 bombs were planted, 1,427 weapons and 19.6 tons of explosives were found, and 2,584 persons were charged with terrorist offences. In 1978 the European Court confirmed by a large majority the view of the Commission that the use of internment in Northern Ireland was not a violation of the Convention (16 to 1 on Article 5 and 15 to 2 on Article 14). The Court confirmed the broad measure of discretion States enjoy in derogation cases and clarified its rationale for the margin of appreciation doctrine. It stressed that ‘by reason of their direct and continuous contact with the pressing needs of the moment’,Footnote ²³ national authorities are better placed to decide whether to derogate from a right in public emergency situations, even when the disputed security measures clearly discriminated between competing unlawful paramilitary groups. Ireland v UK signalled the wide extent to which State-centred arguments were preferred in public emergency cases as a consequence of the Strasbourg organs significantly self-limiting their powers of review.Footnote ²⁴

Viewed retrospectively, it is rather remarkable that at a time when a wide variety of politicians and academics in Britain and Ireland were commenting on the counterproductiveness of internment in Northern Ireland, and when other European countries facing serious terrorist attacks (such as West Germany and Italy) were not finding it necessary to resort to internment, the European Court should—with so little detailed analysis—condone the practice. The last internee had been released even before the European Commission adopted its report into the Irish government's application, so it was not as if a finding by the European Court against the United Kingdom's use of internment would have driven a coach and horses through current national policy and practice in relation to the control of terrorism in Northern Ireland. As we will see, the Court did hold that the United Kingdom had breached Article 3, which makes it all the more difficult to understand why there was no adverse finding in relation to Article 5 too. It is also disappointing that the European Court did not deal in any detail with the serious allegations made against the UK government to the effect that it had failed to properly cooperate with the European Commission and Court in their consideration of the Irish government's allegations.

When indefinite internment ended in 1975 the UK government relied instead on ‘executive detention’, whereby an arrested suspect could be held by the police for up to 48 hours and then detained purely on the order of a government minister for a further five days before having to be either charged and brought before a judge for a decision on the lawfulness of the detention or released without charge.Footnote ²⁵ The application in Brogan v UK Footnote ²⁶ was the prompt for the European Court to issue a ruling that, in general, no one can be held in detention for more than 96 hours without being brought before a judicial authority. In practice, however, this decision made little difference because the United Kingdom reacted by reintroducing the derogation from Article 5 which it had inexplicably withdrawn four years earlier, in 1984. When the new derogation was later challenged, the Court had little hesitation in upholding its validity.Footnote ²⁷ It was even upheld in a case relating to an arrest in 1998, four years after the IRA's first ceasefire in 1994 (which was broken in 1996 but renewed in 1997).Footnote ²⁸ It is clear that after 1975 in Northern Ireland short-term internment in effect replaced indefinite internment.

The European Court did insist that arrest powers in Northern Ireland should be founded on reasonable suspicion, not just suspicion,Footnote ²⁹ but the domestic law had already been changed to reflect that requirement by the time that judgment was issued and one can question whether the change made any real difference in practice. Certainly Strasbourg has not been very strong as regards the right of arrested people to be told the grounds of their arrest: in Brogan v UK Footnote ³⁰ the Court held that reasonable suspicion of involvement in ‘terrorism’ was enough (without mention having to be made of any specific offences) and in Kerr v UK Footnote ³¹ it held that the applicant detainee should have been able to work out for himself, from the questions put to him over the course of 39 interviews within a week, why he had been arrested. The record on delays in trials and on the availability of bail is better: in the early case of Orchin v UK Footnote ³² the Commission found a breach of Article 6 where the applicant had been remanded on bail for no less than four years before being tried in relation to the possession of firearms, and in Gault v UK Footnote ³³ (a non-troubles related case) the Court found a breach of Article 5 where a woman had been refused bail pending her retrial for aiding and abetting the murder of her husband. In McKay v UK,Footnote ³⁴ however, the Grand Chamber held that there was no breach of Article 5(3) when an alleged armed robber was brought before a magistrate who was empowered to consider the lawfulness of his arrest but not whether he should be granted bail.

The Convention proved of little use in controlling the operation of powers to detain people for long periods at ports and airports,Footnote ³⁵ or to exclude them from discrete parts of the United Kingdom.

C. The Right Not to Be Ill-Treated

The first case to raise issues concerning the alleged mistreatment of detainees in Northern Ireland was Donnelly v UK. Footnote ³⁶ There were seven applicants involved, this time carefully selected on the basis of their actual victimhood. Each of the men alleged that he had been beaten while in police custody—some said that they had received blows to the head and body, others that they had been kicked in the genitals or given electric shocks to their genitals. Three of the applicants even alleged that against their will they had been administered ‘truth drugs’ to make them confess to crimes. In all they referred to 157 specific cases of alleged ill-treatment.Footnote ³⁷ The applicants asked for a temporary injunction to put a halt to such practices pending the outcome of their applications. They also asked for their applications to be given expedited consideration and for a full investigation to be conducted into the alleged systemic brutality. With commendable speed, the European Commission announced just seven weeks after the applications had been lodged that it would indeed expedite their consideration but it said that it had no power to issue a temporary injunction.Footnote ³⁸

In 1973, the Commission declared the applications to be admissible,Footnote ³⁹ which in itself was a significant triumph for the applicants, not only because the Commission was prepared to proceed with the case even though similar allegations were still pending before the European Commission in the inter-State application lodged by Ireland in 1971,Footnote ⁴⁰ but also because it established two propositions which have since become firm rules within the European Convention system. The first is that an individual can complain that an administrative practice is a systematic breach of the Convention provided that he or she adduces prima facie evidence of such a practice and of him or herself being a victim of it.Footnote ⁴¹ The second is that when an individual alleges the existence of such an administrative practice he or she does not first have to exhaust domestic remedies in that regard: instead, the question of the effectiveness of those domestic remedies can be considered at the same time as, and as part of, the merits of the application.Footnote ⁴² These were remarkably progressive conclusions for the time and marked a somewhat unheralded coming-of-age for the European Commission in its handling of applications under the Convention. This article will show below that allegations of an administrative practice and exceptions to the rule of prior exhaustion of domestic remedies also came to characterize a sizeable portion of security-related applications lodged from Turkey.

Unfortunately, the initial triumph at the admissibility stage in Donnelly v UK turned out to be a Pyrrhic victory. After the Commission had examined the merits of the claim, it decided that the alleged administrative practice could not be considered to be in violation of the Convention because evidence had not been adduced to show that it rendered domestic remedies ineffective or inadequate.Footnote ⁴³ Three of the seven applicants were held not to have exhausted the local remedies available to them within the legal system of Northern Ireland. The other four had already received financial settlements in respect of their claims. The Commission was therefore of the view that it had been shown that the machinery for providing compensation had worked effectively in practice. It considered at some length the applicants’ wider argument that, in the circumstances prevailing in Northern Ireland, compensation was not an adequate remedy for their complaints, since they were allegedly the victims of an administrative practice,Footnote ⁴⁴ but it concluded (perhaps naively, in retrospect) that the procedures in place to prevent the occurrence or repetition of the acts complained of were effective enough for the purposes of the Convention.

All in all, the Donnelly case presented a further lesson to applicants and lawyers alike. Proving that a State is systematically failing to comply with its Convention obligations is extremely difficult, especially at a time when a conflict is raging and the collection of hard evidence is highly problematic. The reluctance of the Strasbourg organs to implicate the government in systematic violations of human rights persisted in insurgency-related Turkish cases as well. Suggestions that a State is failing in its obligations can be easily defeated by the State showing that it is making its best efforts to prevent abuses of rights. In the 1970s and 1980s, moreover, it was almost always fatal to an applicant's case that he or she had started civil legal proceedings in the domestic legal system, for this automatically undermined any allegations that domestic remedies were ineffective, even in Article 3 cases.

Allegations concerning the ill-treatment of detainees were also dealt with during the inter-State case of Ireland v UK referred to above. In particular the Irish government alleged that detainees were being hooded, spreadeagled for long periods against walls, deprived of food, water and sleep, and exposed to continuous loud or monotonous noises during their custody. The UK government, obviously disturbed by these applications, announced that the use of the impugned interrogation techniques had been stopped; at the same time the Prime Minister stated that ‘interrogation in depth’ would continue.Footnote ⁴⁵ In its report on the merits of the applications, issued in 1976,Footnote ⁴⁶ the Commission unanimously found that the techniques employed during the detaining and interrogating of suspects amounted to ‘torture’.Footnote ⁴⁷ This was less than two months after the Commission's decision in Donnelly v UK, where it had rejected the allegation that there was an administrative practice to mistreat detainees and that there were no effective domestic remedies available to address complaints of mistreatment. When the Court, in its first occasion to pronounce on an inter-State matter, reviewed the Commission's decision in 1978,Footnote ⁴⁸ it was not asked to consider individual cases but whether the United Kingdom was engaging in a State practice in breach of Article 3. All of the 14 individuals involved had already received compensation of between £10,000 and £25,000 from UK authorities for the treatment they had endured. By 13 votes to four the Court held that these five techniques did not amount to torture. Instead, by 16 votes to one, it held that they were inhuman and degrading treatment, on the ground that the drafters clearly intended to reserve the label of torture for actions which were particularly cruel and caused intense suffering. The one judge who thought that the use of the five techniques did not even amount to degrading treatment was Sir Gerald Fitzmaurice, the UK judge, and amongst the four judges who agreed with the European Commission that what had happened in Northern Ireland was torture was the Irish judge, Philip O'Donoghue.Footnote ⁴⁹ On the issue of whether the UK government had properly cooperated with the Commission's investigations of the alleged incidents, the European Court ‘regretted’ the Government's attitude.Footnote ⁵⁰ Just recently it has come to light that even within the British government the five techniques were described as torture,Footnote ⁵¹ so those of the so-called ‘hooded men’ who are still alive are now seeking to have the case reopened within Northern Ireland so that a further investigation can take place into whether the government deliberately misled the Strasbourg authorities.Footnote ⁵² The Irish government has also asked the European Court to revise its 1978 judgment in the light of the revelations about the British government's apparent duplicity.Footnote ⁵³

Boyle observes that ‘[t]he real significance of the findings in Ireland v UK was the emphasis placed by the Commission and Court on the inadequacy of remedies during the period it was examining’.Footnote ⁵⁴ It may be speculated that if such interrogation methods were to be practised today, the Court might have reached a different conclusion, probably with the same rationale that underpinned its decision. Certainly, over the decades the Court's attitude has somewhat shifted in this area, which is not surprising given its preference for interpreting the Convention as a ‘living instrument’, to be developed in light of changing circumstances.Footnote ⁵⁵ Such a change in the Court's attitude regarding torture was made clear in Selmouni v France Footnote ⁵⁶ where the Court, finding the French State responsible for violating Article 3 of the Convention, noted that:

Given that the European Court is never totally free from the political context within which it is operating, it is understandable that the Court exercised extreme caution while dealing with a highly sensitive, politically charged case where, as Ní Aoláin pointed out, ‘a leading Western democracy [was] being accused of [using] systematic torture in the context of a fraught internal conflict in Northern Ireland to which the British government had committed its military forces’.Footnote ⁵⁸ As will be seen in the context of the Turkish cases, while the Court did take some daring decisions holding the State responsible for torture, in the majority of cases the high threshold set to distinguish torture from inhuman and degrading treatment has rigorously been applied to absolve the State from the stigma of torture.

D. The Right to Life

Allegations that the British security forces had breached the right to life of protestors and terrorist suspects were also raised by the Irish government in the inter-State case, but were held to be inadmissible for lack of evidence. Other cases raising the same right had either also been declared inadmissible (because, for example, there was evidence that the victim was rioting at the time,Footnote ⁵⁹ or that the security forces had acted in self-defenceFootnote ⁶⁰) or had been settled.Footnote ⁶¹ Complaints about the killing of 14 people by British soldiers in Derry on 30 January 1972 (‘Bloody Sunday’) were dismissed for being out of time, having not been lodged until 1994.Footnote ⁶² But a breakthrough occurred when the European Court held in McCann v UK, by 10 votes to nine, that when undercover British soldiers shot dead three members of the IRA in Gibraltar in 1988, believing that they were about to detonate a car bomb, Article 2 had been violated, because the operation to arrest the bombers had not been carefully enough planned.Footnote ⁶³ This case reaffirmed the principle that the use of lethal force must be strictly necessary for, and proportionate to, the achievement of the law enforcement objective.Footnote ⁶⁴ The decision emphasized States’ positive obligations to take effective security measures before resorting to the use of lethal force and to conduct effective official investigations into suspicious deaths. This meant that States were not merely to refrain from taking life unless absolutely necessary for one of the purposes set out in Article 2(2), but that when death transpires they must take positive measures to investigate the circumstances and provide appropriate remedies in case of any fault attributable to the security forces. These principles have since been applied in numerous other cases, including applications taken against Turkey, where the absence of effective official inquiries into arbitrary deprivation of the right to life (or of property) have often been found to constitute breaches of the Convention.Footnote ⁶⁵

In a series of decisions issued in cases from Northern Ireland on 4 May 2001,Footnote ⁶⁶ the European Court developed a set of procedural obligations which have to be met by States when investigating deaths. As a result, amongst the current requirements of an Article 2 compliant investigation are that it be independent of those alleged to have caused the loss of life, that it be initiated by the State rather than by the victim's family or friends, that it be prompt and thorough, that it be capable of identifying whether excessive force was used and who might have been responsible for using it, and that it keep the next-of-kin of the deceased informed about the progress of the investigation. The system for holding inquests in Northern Ireland was found to be in breach of additional requirements in that persons who caused the death were not required to give evidence at the inquest, the deceased's next-of-kin could not get legal aid to attend, and the coroner and jury could not produce findings which would play an effective role in securing anyone's prosecution.

There have been several subsequent decisions by the European Court on applications brought from Northern Ireland in which the Court has held that the requirements for a proper investigation have not been met.Footnote ⁶⁷ In fact the UK government is still under scrutiny by the Committee of Ministers for not having fully implemented the judgments issued in May 2001. As discussed below, the authorities in Turkey have also been required to meet the exacting investigatory standards laid down by Strasbourg bodies, which demand the identification and potential punishment of those responsible for human rights abuses and the provision of compensation for the damages sustained by victims.Footnote ⁶⁸ However, unlike in the Turkish cases, no relative of a deceased person in Northern Ireland has ever been found to have had his or her Article 3 rights breached while waiting for the proper investigation of a killing, though they have received damages for breach of their Article 2 rights in that context.Footnote ⁶⁹ Likewise, the European Court has never ruled that State security forces in Northern Ireland violated the negative duty not to take life in Northern Ireland.

E. The Right to A Fair Trial

The United Kingdom set up special juryless courts in Northern Ireland (‘Diplock courts’) to try people accused of ‘scheduled offences’, but these were never condemned by the Strasbourg Court as being in breach of Article 6 of the Convention. In some ways they may have operated more fairly than jury trials, since the judges in question were obliged to give written reasons for their conclusions and persons convicted had an automatic right of appeal to a three-judge Court of Appeal. Likewise, attempts to limit the right of accused persons to remain silent during police questioning were very largely held to be consistent with Article 6 in Murray (John) v UK. Footnote ⁷⁰ Later, though, the lack of access to a solicitor, when coupled with the limits on the right to remain silent, was found to be a violation,Footnote ⁷¹ and in another case the conditions in which a detainee was held were found to tip the scale in favour of there being a breach.Footnote ⁷² These conditions had been experienced by hundreds of former detainees but had never previously been condemned in such terms by either a domestic or an international court.

In the absence of any imaginative use of Article 14 in the Northern Ireland context, it was Article 6 which eventually came to the aid of people who were unable to challenge alleged discrimination in the work environment on the basis of their religious belief or political opinion. In Tinnelly & Son Ltd and McElduff v UK Footnote ⁷³ the Court found that this was a denial of access to justice. This decision was announced three months after the Belfast (Good Friday) Agreement in 1998 and the UK authorities found that thereafter they could easily dispense with the previous practice whereby a government Minister was able to issue a certificate preventing someone from receiving a fair hearing of his or her complaint of discrimination on national security grounds. A comparable volte-face occurred in 2000 when the head of the police in Northern Ireland announced that solicitors were henceforth to be allowed to sit with detainees when they were being interviewed by the police. The head of the police and the government had previously argued that there was no legislative authority for such a practice, yet in the end it was able to be adopted without any new law or regulation having to be passed.Footnote ⁷⁴

A. The Right to Individual Petition

The troubled situation in southeast Turkey led the authorities to introduce a long-lasting emergency regime (from 1987 to 2002), which instigated serious restrictions on basic freedoms, including of assembly, association, speech and movement. According to a 1997 Turkish Parliamentary Report, over 500 hundred conflict-related applications had by then been lodged at Strasbourg about such incidents as village destructions, forceful disappearances, extrajudicial killings and torture.Footnote ⁸³

The chief reason for the Kurdish applicants to invoke the Strasbourg machinery was the general disinclination of the Turkish national courts to exercise effective jurisdiction. Kurdish applicants, who were aided by prominent Irish and British lawyers such as Kevin Boyle (experienced in handling conflict-related cases from Northern Ireland) and Françoise Hampson, engaged in strategic litigation at Strasbourg to try to bring about concrete changes in domestic law and practice as well as increase awareness of the ‘Kurdish reality’.Footnote ⁸⁴ The applications proved largely successful in drawing attention not only to the controversial anti-terrorism measures in Turkey but to the general weakness of the domestic remedies in providing some form of redress. The precedent-setting case of Akdıvar,Footnote ⁸⁵ which calls to mind the position adopted by the ECmHR in the Northern Irish case of Donnelly in 1973,Footnote ⁸⁶ introduced an exception to the rule of exhaustion of local remedies. In assessing whether domestic remedies had to be exhausted at all times, the Court held that account had to be taken not only of the formal remedies at hand, but of the particular circumstances of each case. The Court concluded that there was no requirement to exhaust domestic remedies if those remedies were inadequate. It added, however, that ‘its ruling [was] confined to the particular circumstances of the present case’.Footnote ⁸⁷ In other words, the relaxation of the exhaustion rule did not mean that there was an automatic entitlement to circumvent local remedies. The Court maintained its traditional approach in other cases, where it stressed that its position on non-exhaustion of local remedies was not to be interpreted as a general statement that remedies were ineffective in southeast Turkey or that future applicants were absolved from the obligation to have initial recourse to domestic courts.Footnote ⁸⁸

During the admissibility hearings the Turkish government displayed considerable suspicion towards the applicants who were complaining about counter-insurgency measures.Footnote ⁸⁹ The government also accused petitioners of manipulating the Convention system in order to undermine Turkey's national security and legitimate the activities of the PKK.Footnote ⁹⁰ It further maintained that the failure of applicants to exhaust local remedies was an abuse of the right of individual petition and part of a strategy aimed at denigrating Turkey.Footnote ⁹¹ In response to such claims, the ECtHR stated that the respondent State's arguments could be accepted only if it were clear that the applications were based on untrue facts, which here had not been demonstrated.Footnote ⁹²

Another issue faced by the applicants concerned the right to petition under Article 25 of the ECHR without any hindrance from the State (now Article 34). Some applicants complained that they were subjected to pressure from the authorities to modify or withdraw their applications. In Akdıvar, where the applicants were questioned by domestic authorities about their petitions, the Court found a violation of Article 25.Footnote ⁹³ In Kurt,Footnote ⁹⁴ the Court held that the government's pressure on the applicant to withdraw her application was illicit, and that the threat of criminal measures against her lawyer was unacceptable.Footnote ⁹⁵ In Orhan,Footnote ⁹⁶ where the applicant was summoned before the prosecutor on account of his application, the ECtHR similarly found this direct contact with the applicant to be inappropriate. In analogous cases, the Court consistently stated that Member States had to avoid dissuading or discouraging applicants or their representatives from pursuing a Convention remedy.Footnote ⁹⁷

B. First Instance Fact-Finding

In view of persistent strong disagreements between applicants and the Turkish government over the depiction of alleged events stemming from the emergency region, the Convention organs deemed it necessary to hold fact-finding hearings in order to adjudicate on important factual inconsistencies. These hearings proved particularly vital not only in cases where there were marked discrepancies between the claims, but also where local authorities seemed to have avoided disclosing key evidence. Although fact-finding was meant to be exceptional, it became such a common practice that Turkish casesFootnote ⁹⁸ constitute 66 per cent of all the fact-finding missions conducted in the history of the Convention system.Footnote ⁹⁹ In the inter-State case relating to Northern Ireland very extensive fact-finding hearings took place as well: the seriousness of the conflict meant that some of these could not take place in Northern Ireland itself, or even in London, and so they were held in Norway.Footnote ¹⁰⁰

In the cases examined by the Convention organs the Turkish authorities’ most frequently occurring failures relate to the lack of on-site investigations, the scarcity of witness testimony referring to critical issues, exclusive reliance on official statements on those issues, denial of fair trial guarantees, deficiencies or distortions in custody records and a lack of effective local remedies.Footnote ¹⁰¹ While fact-finding exercises revealed that certain violations had been repeatedly committed,Footnote ¹⁰² the Court chose to treat each case on its individual merits.Footnote ¹⁰³ Nonetheless, fact-finding hearingsFootnote ¹⁰⁴ were generally successful in undercutting official denials of any wrongdoing in the emergency region, which in turn undermined the official claim that applicants had acted with the main motive of discrediting the State.

C. Allegations of Systematic Violations

As in Northern Ireland, Turkish cases in Strasbourg emerged against a backdrop of an entrenched political crisis which engendered acts of terrorism, but also unconventional counterterrorism measures that violated human rights on a large scale. Allegations of an ‘administrative practice’ featured regularly in the individual applications during the 1990s,Footnote ¹⁰⁵ where it was essentially argued that the violations suffered amounted to a systematic practice due to their unremitting and discriminatory character and that it was therefore necessary to examine not only individual incidents complained of but also the overall context and pattern within which such infractions transpired.Footnote ¹⁰⁶ As noted above, the lawyers in Kurdish cases were seeking to effectuate politico-legal change in Turkey and to challenge the denial of the Kurdish problem. Françoise Hampson, one of the chief representatives of the Kurdish applicants, reportedly said that their strategy proved effective in creating ‘a significant number of court judgments [with the effect that] Turkey could no longer pretend in the Council of Europe that there was not a human rights problem’.Footnote ¹⁰⁷ She regretted, however, that although findings of gross violations were important tools of the strategy to ‘change things’, they were ‘less successful’ in convincing the Court ‘to recognize the scale of the problem’.Footnote ¹⁰⁸ Indeed, while fact-finding hearings revealed a pattern of certain transgressions (such as house-burnings, disappearances, extrajudicial killings and a lack of remedies), the resulting findings were treated as isolated incidents—an approach which gives credence to the idea that the Convention system is not suited to dealing with gross or systemic violations.Footnote ¹⁰⁹

The following cases attest to the gravity of the allegations concerning the existence of an administrative practice in Turkey. In Aksoy, the applicant complained that he was tortured during his 14-day incommunicado detention in the emergency region where national authorities tolerated widespread violations of human rights and failed to provide effective remedies.Footnote ¹¹⁰ Although the Court found domestic remedies illusory and inadequate, thereby absolving the applicant from the rule of exhaustion, ‘it did not find it necessary’ to determine whether there indeed existed an official practice of systematically tolerating human rights abuses.Footnote ¹¹¹ Significantly, Aksoy occasioned a finding that, despite Turkey's derogation from the right to liberty and security under the Convention,Footnote ¹¹² the detention of the applicant for 14 days without any judicial intervention had not been necessitated by the exigencies of the situation. The Court noted that, whilst the investigation of terrorist offences undoubtedly presented the authorities with special problems, the prolonged detention was exceptionally long, and hence constituted an arbitrary interference with the applicant's right to liberty.Footnote ¹¹³ The Court reaffirmed its stance in other similar cases,Footnote ¹¹⁴ where holding a suspect in detention for excessively long periods without judicial supervision was not found to be necessary, in particular when the government failed to adduce ‘any detailed reasons as to why the fight against terrorism … rendered any judicial intervention impracticable’.Footnote ¹¹⁵

Returning to the theme of alleged administrative practice, the applicants in Akdıvar similarly complained that they were victims of an administrative policy which condoned the destruction of some three thousand villages and the displacement of almost two million people. They further stressed that since massive population displacement was a State-inspired strategy, it was impossible to make recourse to effective remedies.Footnote ¹¹⁶ Whilst the Court found exceptional circumstances which absolved the applicants from their duty to exhaust local remedies, it did not consider the evidence strong enough to justify a finding of an administrative practice.Footnote ¹¹⁷

Analogously, in a string of judgments concerning the claim that the applicants had been subjected to gross violations on account of their Kurdish origin, the Strasbourg organs found allegations of ethnic discrimination to be unsubstantiated; this mirrors what occurred in relation to cases from Northern Ireland, where applicants were repeatedly told that they had not adduced enough evidence to substantiate their claims that they had been discriminated against on grounds of religion, political opinion, national origin or association with a national minority. Likewise, in Kurt,Footnote ¹¹⁸ where the applicant asserted that forced disappearances mainly targeted people of Kurdish origin, the Court deemed the evidence insufficient to reach such a conclusion. Similarly, in both Akdıvar and Hasan Ilhanlı,Footnote ¹¹⁹ the Court refused to draw an inference of a discriminatory policy of mass house demolitions targeting the Kurdish community.Footnote ¹²⁰

Put in a nutshell, submissions that violations were part and parcel of an administrative or discriminatory practice were dismissed by the Strasbourg bodies either on the basis of insufficient evidence or on the unsatisfactory ground that it was ‘not necessary to determine whether the failings identified [were] part of a practice adopted by the authorities’.Footnote ¹²¹ As with cases from Northern Ireland, the Convention organs steadfastly adopted a case-by-case, fact-specific approach to all counterterrorism related issues. While a finding that there had been a systematic administrative or discriminatory practice would have placed much heavier pressure on Turkish authorities to conduct its anti-terror measures in line with Convention requirements, Strasbourg's choice of handling each case as an isolated incident was arguably critical for ensuring that Turkey did not become wholly alienated from the Council of Europe.Footnote ¹²² This quasi-political stance might also have motivated the ECtHR when dealing with some of the human rights issues arising in Northern Ireland, in particular the alleged abuses resulting from derogation notices, discrimination on grounds of religious belief or political opinion, internment without trial and ill-treatment of detainees.

D. Village Destructions

One of the most distinguishing features of the Turkish conflict was the village destruction phenomenon. In its combat against the PKK insurgency, the Turkish security forces evacuated and destroyed over three thousand rural settlements. The practice of village destruction during the 1990s forced over three million inhabitants to leave their homes.Footnote ¹²³ Kurds who were suspected of providing shelter to the PKK, or who refused to be recruited into the State-sponsored paramilitary ‘village guard system’, were at times made an example of by having their villages burnt down—a strategy which was aimed at depriving the PKK of access to food, shelter and potential recruits.Footnote ¹²⁴ The motive behind the village destructions has never been the subject of Strasbourg scrutiny; the rulings eschewed the difficult question of whether destructions had been a form of punishment for the applicants’ alleged involvement in the PKK.Footnote ¹²⁵

Instead the European Court has focused on whether, in individual cases, Articles 3 and 8 of the ECHR have been violated. In assessing whether home destructions resulting in massive uprooting of populations attained the minimum level of severity for the purposes of Article 3, the Court adopted a contextual approach by taking into account the physical and mental effects of the treatment. In Dulas,Footnote ¹²⁶ the fact that the applicant was over 70 when her home and property were destroyed before her eyes, leaving her destitute and without shelter and obliging her to leave her accustomed community, and the fact that there was no official remedy to alleviate her plight, were all considered in reaching the conclusion that the complained acts amounted to inhuman treatment.Footnote ¹²⁷ Again, in Yöyler,Footnote ¹²⁸ the destruction of the applicant's home was not only found to constitute a grave and unjustified interference with the applicant's rights to privacy and property, but also with his right to freedom from inhuman or degrading treatment. The finding of inhuman treatment was similarly justified on grounds that the victim's house was burned before the eyes of his family members, rendering them vulnerable without any support and obliging them to seek a livelihood elsewhere.Footnote ¹²⁹ In a series of cases brought on behalf of the displaced, the Strasbourg bodies generally found the authorities responsible for destroying homes and possessions.Footnote ¹³⁰ The Court acted on the premise that since home and privacy are inextricably connected, the destruction of the villages constituted grave and unjustified interferences with the applicants’ rights to privacy and family lives as well as the peaceful enjoyment of their possessions.Footnote ¹³¹

Although the Court recognized the extent of the village destruction problem and the lack of accountability for the perpetrators, it has never contextualized the events within a broader framework. Apart from requiring the payment of compensation to the victims, this approach did not provide a compelling incentive to the government to identify and punish those responsible for the atrocities. Significantly, however, in a judgment delivered in 2013,Footnote ¹³² the Court did require Turkey (under the supervision of the Committee of Ministers) to identify and punish the perpetrators of an indiscriminate bombing of two villages in 1994, which caused 38 deaths and numerous injuries. These belated steps are of crucial importance for public acknowledgement of past wrongs and for eradicating impunity for serious human rights violations.

E. Enforced Disappearances and the Right to Life

Following his official visit to Turkey in November 2012, Christof Heyns, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, observed that one of the most urgent challenges facing Turkey was to eradicate the culture of impunity for those responsible for unresolved killings and deaths in custody, in particular during the 1990s. The Rapporteur expressed his regrets that only a negligible number of trials had been conducted, as there had been a lack of political will to hold perpetrators of gross violations accountable before the statute of limitations expired.Footnote ¹³³

In cases of alleged disappearances and extrajudicial killings, the Court considered allegations of Article 2 violations in both their substantive and procedural aspects. Regarding substantive claims, the Court generally applied a high standard of proof by requiring allegations that disappearances and killings had been committed by the security forces to be proved beyond reasonable doubt. In this class of case, the Court did not initially give much weight to the wider context, nor did it give due acknowledgement to the extreme difficulty facing the applicants in obtaining hard evidence from non-cooperative authorities. When applicants had no conclusive evidence but relied on mere inferences or unproven hypotheses, the Court did not consider reversing the burden of proof—even when the government was condemned for a lack of effective investigations.Footnote ¹³⁴ It should be noted, however, that when the Court deemed the evidence inadequate for it to conclude beyond reasonable doubt that the disappeared person had been killed by State agents, it then turned to the question whether there had been an effective investigation of the incident. When the Court held that the national authorities failed to carry out adequate investigations into the circumstances surrounding the matter, it generally found a procedural violation of Article 2.Footnote ¹³⁵ There are similarities here with the cases coming to Strasbourg from Northern Ireland: the United Kingdom government has never been condemned by the ECmHR or ECtHR for breaching its negative obligation not to deprive people of their lives, but it has been condemned for not properly investigating controversial killings in which it may in some way have been implicated.

Kurt v Turkey,Footnote ¹³⁶ decided in 1998, was the first involuntary disappearance case. The applicant submitted that her son might have died in unacknowledged police custody, within a political context characterized by high incidents of torture, unexplained deaths and forced disappearances. Having applied its high standard of proof, the Court found no substantial breach of Article 2 on grounds that the allegations were merely presumptions resting on purportedly tolerated practices of disappearances and extrajudicial killings of detainees.Footnote ¹³⁷ Concerning the claim that the failure to conduct an effective investigation into the disappearance constituted a separate violation of Article 2, the Court surprisingly examined the claim under Article 5, ruling that the victim was subjected to unacknowledged detention in the complete absence of the safeguards contained in Article 5.Footnote ¹³⁸

The case of Çakıcı Footnote ¹³⁹ occasioned for the first time a finding of a substantial breach of Article 2. The applicant complained that his brother disappeared in 1993 after being subjected to unacknowledged detention by the security forces. In 1996, only after the transmission of government submissions to the Commission, the applicant learned that his brother had been killed by the security forces in an alleged clash with PKK militants in 1995. The government asserted that the victim was identified by his identity card found on his person. Deviating from its approach in Kurt, the Court not merely examined the disappearance claim under Article 2 but attached significant weight to ‘circumstantial evidence based on concrete elements’ in reaching the conclusion that the applicant must have died after his unacknowledged detention.Footnote ¹⁴⁰ While the facts of Çakıcı were not markedly distinct from those of Kurt, the Court in the instant case had no hesitation in drawing ‘very strong inferences’ from the authorities’ claim that the victim's identity card was found on the body of a dead terrorist.Footnote ¹⁴¹

In another leading case, Timurtaş v Turkey,Footnote ¹⁴² where the victim lost his life during his six-and-a-half-year unacknowledged detention, the Court found a violation of Article 2 on both substantial and procedural grounds.Footnote ¹⁴³ Once again, in a bid to distinguish its approach from Kurt, the Court employed rather unconvincing reasoning by stating that in the present case the passage of time since the detention was six-and-a-half years (two years longer than in Kurt), that it had been established that the victim was taken to a place of detention (in Kurt the victim was seen to be surrounded by the soldiers), and that there was no doubt that the victim was wanted by the authorities about his alleged involvement with the PKK (in Kurt the victim was merely under suspicion of having links with that organization).Footnote ¹⁴⁴ Despite the relative insignificance of these differences,Footnote ¹⁴⁵ the positive shift in the ECtHR's position clearly indicated that it tacitly acknowledged the wider socio-political context of the 1990s within which unacknowledged detentions and enforced disappearances had posed serious threats to human life.

F. The Right Not to Be Ill-Treated

Apart from the findings of ill-treatment in village destruction cases, Strasbourg bodies have also identified incidents of torture committed by the security agents. In the Turkish cases the Court continued to require a higher level of egregiousness of ill-treatment as a central parameter of torture, which is singled out as carrying a special stigma. Aksoy Footnote ¹⁴⁶ was the first individual case to result in a finding of torture. In this case, the applicant complained that he was forced to strip naked and was then suspended for long periods by the arms tied behind his back—a form of ill-treatment known as ‘Palestinian hanging’. The Court concluded that such treatment, considering its serious and cruel nature, could only be described as torture.Footnote ¹⁴⁷ It is worth noting that Aksoy also occasioned a significant shift in the distribution of the burden of proof in some allegations of torture: if individuals are taken into custody in good health but are found on release to be injured, national authorities must offer a plausible explanation for the injury.Footnote ¹⁴⁸

Since acts of torture are often committed with the intention of obtaining information, inflicting punishment or intimidating a suspect, the Court in Dikme Footnote ¹⁴⁹ made reference to the concept of ‘purpose’ as an element of torture. Having referred to the definition of torture in the 1984 UN Convention against Torture, the Court determined that the infliction of ill-treatment ‘was intentionally meted out to the … applicant by agents of the State in the performance of their duties, with the aim of extracting a confession or information about the offences of which [the detainee] was suspected’.Footnote ¹⁵⁰ However, the Court did not further clarify whether the purposive element constituted an ‘essential ingredient’ of torture. Again in Akkoç,Footnote ¹⁵¹ where the victim was subjected to various forms of ill-treatment including sexual abuse, electric shocks, cold water treatment and threats to her children, the Court found that the severity of the purposeful infliction of ill-treatment had met the higher threshold of torture.Footnote ¹⁵² Notwithstanding such unelaborated references to the notion of purpose, it appears that the ‘severity’ test still remains the ultimate yardstick whereby the Court distinguishes torture from ill-treatment.

Although most findings of torture concerned an accumulation of cruel and inhuman acts, in the groundbreaking case of Aydın v Turkey Footnote ¹⁵³ the Court unprecedentedly recognized that an act of rape, in and of itself, could amount to torture. In Aydın, the applicant was repeatedly beaten, forced to remain naked, and then raped by an unidentified agent in police custody.Footnote ¹⁵⁴ The Court held that ‘the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture’.Footnote ¹⁵⁵ Significantly, the findings of Aydın inspired a landmark judgment in Akayesu Footnote ¹⁵⁶ where the International Criminal Tribunal for Rwanda found responsibility for genocide and war crimes based on acts of rape.

When the lack of adequate and effective local remedies for torture victims became the subject of complaints, the ECtHR emphasized the fact that terrorism did not give authorities carte blanche to hold suspects in detention free from judicial review and to deny unlawfully detained individuals the right to seek effective remedies.Footnote ¹⁵⁷ Likewise, the Court found breaches of the right to an effective remedy on account of the failure of national authorities to carry out prompt and effective investigations into alleged violations capable of leading to the identification and punishment of those responsible and to the compensation of the victim where necessary.Footnote ¹⁵⁸ These judgments, despite their non-assertive character, sought to break the cycle of impunity for perpetrators of gross violations. In this connection, when the perpetrators of torture in Batı Footnote ¹⁵⁹ could not be prosecuted before the statutory limitation period had expired, the Court vehemently noted that, due to the lack of sufficient promptness and reasonable diligence on the part of national authorities, ‘the main perpetrators of acts of violence have enjoyed virtual impunity, despite the existence of incontrovertible evidence against them’.Footnote ¹⁶⁰

G. The Impact of Strasbourg Case Law on Turkish Law and Practice

As in the case of Northern Ireland, it is possible to draw links between some of the conclusions reached by the ECtHR in applications lodged against Turkey and subsequent specific reforms to Turkish domestic law and practice. Starting in 1999, when Turkey was first officially recognized as an EU candidate, and until recent times, Turkey has adopted various crucial measures to improve its tarnished human rights record and thereby qualify for full EU accession negotiations. The reforms were introduced in order to meet the so-called Copenhagen criteria, but several actually derived from Court judgments issued in Strasbourg.Footnote ¹⁶¹ The reforms included critical amendments to the Constitution such as the elimination of military judges from the State Security Courts (SSCs),Footnote ¹⁶² the erosion of military dominance at the National Security CouncilFootnote ¹⁶³ and the granting of supremacy to international human rights treaties over national law,Footnote ¹⁶⁴ the last being a development which secured the direct application of Strasbourg judgments within Turkey's domestic legal system. A further effort to reduce the number of applications lodged at the ECtHR came with the amendment to Article 148 of the Constitution, which enabled individuals to submit complaints to the Turkish Constitutional Court before having to resort to the ECtHR.Footnote ¹⁶⁵

In response to an ECtHR pilot judgment,Footnote ¹⁶⁶ Turkey also set up a Compensation Commission with a view to providing satisfactory redress for those who suffered from excessive delays in judicial proceedings. This remedy enabled the ECtHR to redirect more than 2,500 pending applications back to national courts.Footnote ¹⁶⁷ The Compensation Commission complemented an earlier remedial action which sought to ensure adequate reparations for victims of human rights abuses committed in pursuit of anti-terrorism.Footnote ¹⁶⁸ Amelioration of the procedural safeguards at police custody is worth mentioning too. Deferring to the Salduz judgment,Footnote ¹⁶⁹ Turkey adopted a series of measures to remove barriers which inhibited early access to legal assistance for those on remand and other untried detainees.Footnote ¹⁷⁰

Further democratic reforms encompassed the abolition of the death penaltyFootnote ¹⁷¹ the introduction of a zero tolerance policy on tortureFootnote ¹⁷² (which reduced significantly the number of reported cases of torture and ill-treatment), as well as the lifting of the decades-old state of emergency regimeFootnote ¹⁷³ and restrictions on Kurdish broadcasting. Although restrictions remained on the use of the Kurdish language in public education,Footnote ¹⁷⁴ these progressive cultural initiatives, culminating in the formation of a State-run Kurdish TV channel, marked a dramatic departure from the assimilationist policies of the past.Footnote ¹⁷⁵

Regrettably, since the second half of 2015 the pace of reforms has come to a standstill. Even before the recommencement of hostilities, change in practice was generally slow and faltering, for the administrative and juridical structures often resisted reforms, in large measure due to their statist reflexes which urged them to maintain the political status quo.Footnote ¹⁷⁶ The high number of cases against Turkey at Strasbourg also demonstrates that there is not yet an adequate incorporation of European jurisprudence into the country's practices.Footnote ¹⁷⁷ Turkey continues to rank among the countries that have the highest number of non-implemented ECtHR judgments because of structural problems that hinder the effective protection and promotion of human rights.Footnote ¹⁷⁸

As the EU's 2015 Report underlined, the recent re-escalation of the conflict between the military and PKK insurgents has led to tangible backsliding in some key areas, including freedom of expression, judicial independence and, perhaps most importantly, the process for settling the Kurdish issue.Footnote ¹⁷⁹ Another 2015 Council of Europe Report stressed that Turkey should make progress in such matters as reopening unfair criminal proceedings, reducing the length of detention on remand and preventing excessive actions of the security forces.Footnote ¹⁸⁰ What is more, securing the criminal liability of public officials for grave breaches remains problematic. Despite numerous Strasbourg rulings requiring Turkey to conduct effective investigations into alleged violations, with a view to the potential prosecution of suspected offenders, Turkey has yet to eradicate the culture of impunity for violations committed within the context of counterterrorism. Among the major obstacles to accountability are the need to obtain administrative authorization to initiate proceedings against the security personnel and the 20-year statute of limitations for the prosecution of those responsible for egregious breaches.Footnote ¹⁸¹ The result is that many unresolved offences from the 1990s now risk being timed out, forgotten and unaccounted for.