Ecba Statement on Turkey: Coup Aftermath

Date01 September 2016
Published date01 September 2016
Subject MatterUpdate
368 Intersentia
Coup A ermath
e ECBA, whose objects under its constitution include promoting “(…) the
administr ation of justice and human rights under the rule of law w ithin the member
states of the Council of Europe and among the peoples of the world” is alarmed by
reports that following a n attempted coup d’état Turkey is considering the restoration
of the death penalty in order to execute the ringleaders of the coup if not others as
Turkey is a member of the Council of Europe and a signatory of the European
Convention on Human Rights. Consequently Turkey is bound by Protocols 6 and 13
of the ECHR which abolish t he death penalty. Any law adopted by the Turkish
Parliament to restore the deat h penalty would automatically infri nge these Protocols
and in this regard no derogation under Article 15 of the Convention would be
Since according to the Turkish Const itution the Convention prevails over domest ic
law in the case of con ict, res toring the death penalty would als o be unconstitutional.
In addition, using the death p enalty as a punishment for taking par t in or leading
the coup would require the law restori ng capital punishment to be applied ret roactively.
is would be a  agrant violation of Article 7 of the Convention which expressly
forbids the imposition of a heavier penalty than the one applicable at the time the
o ence wa s committed.
Under these circumstances should a law be adopted which provided for the
execution of coup participants one would expect it to be struck down by the
Constitutional Court.  ere are, however, fears that the Constitutional C ourt might,
for one reason or another, decline to interfere with such a law.
e ECBA is but a neutral observer of developments in Turkey in general and of
the recent coup and its a ermath i n particular. Nonetheless the ECBA emphasises
that failure by the C onstitutional Court to stri ke down such a law would constitute an
abdication of its duties and responsibilities to the law and the people it governs and
would signal in addit ion the total abandonment of the rule of law in Turkey.
Any law restoring the death penalty especially w ith retroactive e ect and any
failure by the Const itutional Court for whatever reason, to stri ke that law down could

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