The Armenian Case and European Judiciary: Beyond Statements


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.

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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.

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.)


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