Turkey is having a bad day at the European Court of Human Rights (ECtHR). The Court ruled in one decision that Turkey was liable for wrongful death of a Cypriot who in uniform but unarmed crossed the U.N. Buffer zone. Likewise, the Court ruled that Turkish censorship of Turkish newspapers was too restrictive.
In Kallis and Androulla Panayi v. Turkey (1) the Court ruled that Turkey violated Art. 2 of the European Convention on Human Rights (ECHR). The court rejected Turkey’s defences that the plaintiff ought to have first exhausted local remedies(2) as local remedies would have been ineffective(3) awarding monetary damages to plaintiffs under Art. 41 ECHR.
In Ürper and Others v. Turkey(4) the Turkish government had suspended publication of several newspapers which it regarded as publishing propaganda for the Communist party of Kurdistan (PKK), a group it regards as terrorist. The Court used the familiar general principle of proportionality (legitimate purpose, rational means, least restrictive means) test to determine whether the invasion of the fundamental right to freedom of press was legitimate. The court determined that the ban on publication was an interference in the fundamental right(5) prescribed by law,(6) that the end sought by Turkey was a legitimate aim of preventing disorder and crime,(7) but that the means used to that end were not necessary interferences.(8) That is, using the more familiar general principle of proportionality terms, the invasion of the fundamental right was not the least restrictive one possible.
As well as representing the sorts of steps which Turkey must consider taking as it seeks accession to the E.U. the case is relevant as an example of the globalization of fundamental rights as legitimators of the state and as the objective of the international legal system. Further, the Ürper case is one more example of the rise of proportionality as the method to adjudicate constitutionalized fundamental rights. The cases can thus be seen as examples of contemporary trends in the globalization of legal consciousness, the convergence of norms to a global ius commune and as of political interest too.
(1) Application no. 45388/99 (27/Oct. 2009).
(2) Kallis at para. 28.
(3) Kallis at para. 35.
(4) Applications nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and 54637/07.
(5) Ürper, para. 24.
(6) Ürper, para. 28.
(7) Ürper, para. 32.
(8) Ürper, para. 44.