The Armenian Case and European Judiciary: Beyond Statements
By Philippe Raffi Kalfayan
Since the beginning of the 21st century, the judicial remedy for
Armenian claims has become familiar and reparation studies and
researches proliferate. The pan-Armenian political terminology
consecrated it. Various initiatives contributed to this process: the New
York Life and Axa Insurance settlements in 2004 and 2005. The most
recent attempt, with a good amount of publicity, is the Catholicosate of
Antelias’ claim for the restitution of Holy See properties of Sis
(Kozan), in Turkey, first before the Constitutional Court of Turkey and
afterwards before the European Court of Human Rights (ECHR). The
application has been successively declared inadmissible by both courts
on the same grounds: the non-fulfilment of the rule imposing the
exhaustion of domestic judicial remedies.
One columnist reported the comments and interpretations of the
plaintiff and of one of his lawyers. I will not comment on their
assertions. However, I deem it is important for people on this side of
the Atlantic to better understand the features, rules and limits of the
European Court. Indeed, most Armenians perceive this rejection as
another judicial defeat; some see a kind of fatalism, others a plot or
evidence for the existence of corrupt powers, while others question the
skills of the legal team. But one must look beyond statements and biased
communication, with a view to play down the decision, balance certain
unhappy observations, and also recall some features and limits of the
ECHR. This will be my modest objective.
The rules of procedure do not depend on the political situation
in a country or the degree of respect for the rule of law. Presuming
that it is a loss of time and hopeless to go before the lower
jurisdictions and deciding instead to apply directly to the
Constitutional Court of Turkey has been the wrong move by numerous
plaintiffs in Turkey those last two years. The massive flow of arrests
or dismissals from posts in different circles because of their alleged
connections to Fettulah Gülen or to the PKK, all allegedly threaten the
national security or the government of the Republic of Turkey. The moves
have also created a back log of applications at Strasbourg, panicking
the Registry of the Court.
First, it must be recalled that the ECHR is not a supreme court
but a subsidiary court to national court systems, whose mandate is
limited to the application and interpretation of the European Convention
of Human Rights (“Convention”) signed by the 47 member-countries of the
Council of Europe. Individual applications must be grounded on alleged
violations of the Convention and of its protocols. The ECHR created a
real dynamic between the national courts and itself: pilot European
judgments pushed the national systems to make their laws compatible,
and, more, leading them to adopt amendments to their domestic laws by
necessity of compliance.
However, this virtuous cycle is
now over: the parties are now showing some political resistance and
asking for a wider margin of interpretation. Some countries have adopted
measures to restore their judicial sovereignty in order to not enforce
all judgments (Russia, Italy); others think about leaving the Convention
(Great Britain in the aftermath of Brexit). In general, a decision of a
foreign or international court cannot be enforced on the territory of a
state without the consent of its judicial or political authorities. The
ECHR judgments are legally binding but the Committee of Ministers of
the CoE, which monitors the enforcement of judgments, cannot take
measures of coercive nature. For an example, Turkey refused so far to
enforce the judgment in the interstate case Cyprus vs. Turkey (2014).
Second, since the alleged coup in July 2016, the Turkish Grand
National Assembly approved on July 21 a State of Emergency as
provisioned in its Constitution and informed the Council of Europe (CoE)
and the ECHR that measures taken may involve derogation from its
obligations under the Convention, as allowed in Article 15. The
declaration has since been renewed every three months and approved by
the Committee of Ministers of the CoE.
Third, Turkey has been the best “client” of the ECHR since 1959,
and they have developed a working relationship with the court. Turkey
contributes 10 percent of the total budget of the ECHR. The economic
factor is far from marginal in this relationship. Moreover, of the
ECHR’s 672 Registry staff members, 44 are Turkish nationals. The ECHR
actually fears a withdrawal of Turkey from its system.
As far as admissibility of cases is concerned, the filter is
composed of one judge, when it concerns the rule of procedure, or by a
committee of three judges or a Chamber, when it concerns the merits. The
procedural admissibility is very formal, and the exhaustion of domestic
remedies is the first fundamental criteria. There may be special
circumstances dispensing the applicant from the obligation to avail
himself or herself of the domestic remedies available. One such factor
may be that of national authorities remaining totally passive in the
face of serious allegations of misconduct or infliction of harm by state
agents, for example where they have failed to undertake investigations
or offer assistance. On the contrary, mere doubts on the part
of the applicant regarding the effectiveness of a particular remedy will
not absolve him or her from the obligation to try it (cf. ECHR Practical Guide on Admissibility Criteria). The alleged political considerations or “deals” don’t intervene at this stage.
In 2016, 36,579 applications were declared inadmissible, among
which the single-judge formation accounted for 30,998 cases. As regards
Turkey, there has been an enormous flow of individual applications in
2017: 16,851 have been declared inadmissible by a single judge for
procedural reasons. Thus, the Sis properties’ case was a mere drop in
the ocean.
Beyond the political chaos in Turkey, one must admit that the
substantiation of Antelias application, whatever creative and complex
the engineering is, arrives at an impasse in Turkey and in Strasbourg.
On the one side, the Constitutional Court admits cases related to facts
that occurred after 2012 (date of the institution of individual
complaints mechanism), and on the other, the legal team’s reasoning
implies the interpretation of the Treaty of Lausanne into Turkish law
(only a national court can do that), before claiming the alleged
violation of right to property in light of the Convention’s First
Protocol. If the first stage is not completed, one could hardly imagine
the ECHR accepting to review such a case, where it involves an
interpretation of Turkish laws. It was tempting to give it a try and
force its fate at ECHR to gain time. But this is not a race.
People:
The road to justice for the historical
crimes committed against the Armenians will be long and is full of
pitfalls, mainly due to the elapsed time, the articulation of different
bodies of laws, and the negative attitude of Turkey. The announcement of
diverse Armenian initiatives indicates that the Armenian Party is on
the right track, and the continuous impulse and leadership of spiritual
and mainstream institutions will help. However, it does not serve the
case to entertain false hopes and to voice exaggerate comments on the
altar of communication.
(Philippe Raffi Kalfayan, a resident of Paris, France, is a lawyer and accredited expert of the Council of Europe since 2003.)