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.
