Page - 16 - in Austrian Law Journal, Volume 1/2020

ALJ 2020 Lessons Learned 15 The European Parliament reacted with a resolution against the restrictions of freedom of expression, which had started well before the coup, at the end of 2014,57 while the European Court of Human Rights found a violation of freedom of expression in the blocking of YouTube by the Turkish government.58 While YouTube was able to go online again, the Kurdish politician Selahattin Demirtas, co-chair of the HDP, which had been very successful in the elections of June 2015 and who was arrested in 2016 is still in prison although the Court in 2018 found that the length of his pre-trial detention could not be justified and that he should be released at the earliest possible date. President Erdogan is on record saying that the judgments of the Court were not binding for Turkey. Already in December 2017 the Constitutional Court of Turkey had found his application inadmissible. Indeed, the case was referred to the Grand Chamber of the Court, which in September 2019 held a hearing in this case. At the hearing the European Commissioner for Human Rights, Dunja Mijatovic accused the Turkish government of using the judiciary to silence critics.59 The well-known Turkish law professor Kerem Altiparmak is on record for having characterized this case as a symbol for Turkey’s struggle for democracy and the state of law.60 After the failed military coup on 15-16 July 2016 a state of emergency was declared on 22 July 2016. It was prolonged six times until 8 August 2018 after Tayyip Erdogan had been sworn in as president under the newly established presidential system, which gave him far-reaching powers as a result of the constitutional changes accepted by referendum in April 2017. The Turkish state of emergency after the attempted coup and the reaction by the Council of Europe raises several issues discussed below under the section on state of emergency. The Parliamentary Assembly actively responded to the degrading situation of human rights and democracy in Turkey after the Coup by expressing serious concerns about the proportionality of the emergency measures and requesting the implementation of the recommendations of the Venice Commission and of the European Commissioner for Human Rights. In its resolution of 2017 on Turkey the Parliamentary Assembly announced the reopening of its monitoring procedure for Turkey until its concerns were addressed in a satisfactory manner.61 At the time this procedure was also still applied to nine other member states including the Russian Federation. Unfortunately, in its decision in the case of Zihni v.Turkey62 the European Court of Human Rights did not consider the thousands of complaints of civil servants as well as many complaints from other sources as applicable but referred the complainants to the troublesome domestic remedies, which in practice were not effective.63 The establishment of an Ad Hoc Inquiry Commission after consultations with the Council of Europe based on emergency decree law No. 685 with the 57 European Parliament resolution of 15 January 2015 on freedom of expression in Turkey: Recent arrests of journalists, media executives and systematic pressure against media (2014/3011[RSP]). 58 Cengiz and Others v. Turkey (Applications nos. 48226/10 and 14027/11), Dec. 1, 2015. 59 Selahattin Demirtas v. Turkey (No.2), Application No. 14305/17, Judgement of Nov. 20, 2018, referred to the Grand Chamber in Mar. 18, 2019; see European Court of Human Rights Press Release ECHR 316(2019) of Sep. 18, 2019. 60 See https://ahvalnews.com/selahattin-demirtas/echr-holds-grand-chamber-meeting-case-jailed-pro-kurdish- leader-demirtas (last visited 02.12.2020). 61 See Parliamentary Assembly, The functioning of democratic institutions in Turkey, Resolution 2156 (2017) of Apr. 25, 2017, in particular para. 38. 62 Zihni v.Turkey, Application no. 59061/16, Decision of Nov. 29, 2016. 63 Kerem Altiparmak, Senem Gürol, Turkey’s Derogation of Human Rights under the State of Emergency: Examining its Legitimacy and Proportionality, Vol. 22 AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW 125 et seq. (2017)2019.