İçtihatlarla İnsan Hakları: Yargıç Pinto de Albuquerque'nin Seçilmiş Şerhlerinin ve İlgili AİHM Kararlarının İncelemeleri (3 CİLT)

Introduction

Paulo Pinto de Albuquerque* Adem Sözüer** F. Pınar Ölçer***

1. The evolution of the project

Drawing that year to a close, in late December 2018, Judge Pinto de Albuquerque travelled to the Netherlands to deliver the final lecture in the ‘Human Rights and EU Criminal Law in Context’ course at Leiden Law School. Chatting with him before commencement, having spotted the copy of the cover of the pending publication of a collection of his opinions in Russian laying between his notes, the third author of this introductory chapter hopefully queried whether the Judge would be interested in having such book in Turkish also. That query was met with immediate enthusiasm on his part and, following a quick telephone call to the equally thrilled second author in Istanbul, the matter was settled at post-lecture lunch, even before the meals had been ordered.

The three authors of this chapter now cleaved as an editorial triumvirate, the idea of inviting a significant group of young Turkish scholars and practitioners to author the book was quickly and intuitively agreed upon. Again, early on in the design of the volume, the decision was made to ask the authors to not only translate into Turkish a selection of opinions, but also provide commentary on them and the judgments to which Sayfa XLII they are attached.. As such, the rationale of critical discourse inducement became a foundational aspect of the book and led to the choice for a particular structure for the chapters. No current journal exists in Turkey devoted to the systematic publication and annotation of ECtHR case law. The chapters are thus designed with an eye on the potential for a more long-term mission, namely the development of our endeavour into a durable project facilitating active and persistent dialogue between the Court and the Turkish legal system. Giving consequence to the aspiration to garrison dialogue between the Turkish legal community and the ECtHR, authors were invited moreover to not only provide commentary in ‘free form’, but in doing so, also sample the prospects ‘annotation’ can offer as a particular writing configuration, the difference with common annotative praxis being that the annotations in our book are attached not only to translations of judgments, but rather also to the separate opinions annexed to them.

A smaller list of choices having been selected from the full catalogue of opinions by the editors, the invited authors - who each jumped at the opportunity - were asked to each adopt a judgment and opinion, in accordance with their own profile and preferences. The selection of opinions and authors at once reveals that most of the collaborators in this book share a common profile or genealogy as criminal lawyers. Barring some exceptions, all judgments and opinions in this volume as such centre around issues of criminal justice, or at least play out in the problematic periphery of that domain. The editors’ criteria in choosing authors was straightforward - they were to be young lawyers, and be interested in human rights law. All our authors neatly meet this profile. Each represent a fresh face and voice in Turkish academia or practice, hailing from diverse universities throughout Turkey, from Ankara to Antalya to Istanbul, working in different stages of academic advancement and/or in Turkish legal practice.

In the process of translation and annotation, our young authors were guided through written formats and notes provided by the editors, as these were established in deliberative concert. With an eye on the longer term ambitions attached to the project - to establish a permanent Sayfa XLIII platform for the tracking, selection and annotation of ECtHR case law in Turkey - the working process included some thinking on and experimentation with digital platforms to see how they could, in the future, enable collaborative spaces for Turkish lawyers for permanent and regular communication to that end. While those digital platforms were in the end not used extensively in the creation of the present volume, the exercise still showed the possibilities they may offer, when utilized to the fullest extent, for co-operation in this respect, between future editors and annotators of a permanent journal, participating from all corners of Turkey.

The ne plus ultra of our collaborative efforts - in the galvanization of the work which lay ahead, as well as the foundation of a great camaraderie in our joint undertaking - came when all editors and authors, some traveling from near, others from far, met in Istanbul in mid-August 2019, to discuss the selected judgments and opinions. With some prepping and propping in advance, at this meeting, almost all authors presented before the company as a whole, their ‘own’ judgment and opinion, advancing their initial ideas as to how to deal with them in their chapters. It should be emphasized … our authors are truly young, but were without exception more than equal to what must have been a daunting task and episode of their fresh careers, being asked as they were to relate and comment, on the opinions of Judge Pinto de Albuquerque, with the Judge himself prominently sitting as part of the commenting audience. Each of these authors having presented their ideas and listened to Judge Pinto de Albuquerque’s remarks and suggestions for all - not a single participant tired in the least after an eight hour session on that 17th of August - we parted company, all happy smiles emblazoned on countenances and souls, jubilant and excited about the discussions of the day and the prospects ahead.

The process of writing and review took place in the ensuing months, with first drafts being equipped with written comments and returned to the authors. The comments were mainly provided in English, allowing Judge Pinto de Albuquerque access and ability to comment on those remarks (with him creating further entrée for himself via a digital translation device). The authors having incorporated comments, the project evolved to such a state that the agenda was initially to publish and present Sayfa XLIV the book at an event at the ECtHR in late March of 2020. As it did with global rotation however, having arrived in Europe, the COVID-19 pandemic waylaid our plans. Not wishing to go from prograde to retrograde, the decision was made to not be dismayed but rather to utilize the time created by the pandemic-imposed immobility to build in a further review stage, with the aim of reinforcing the scholarly qualification of our authors’ work. As such, a team of peer reviewers were invited to go again through all chapters and particularly provide comments on the annotations. With profound gratitude to these reviewers for their generosity in reserving their scant time and sharing their valuable comments in the odd and difficult circumstances in which we spent the greater part of 2020, we find ourselves happily ready to publish.

2. Chapter design and rationale

Turning then to content of this book and the rationale-based structure of its chapters, each of these focuses on one ECtHR judgment and the opinion of Judge Pinto de Albuquerque attached to it. All chapters consist of three parts, commencing with a summary of the judgment in Turkish, highlighting its important aspects. Subsequently, the authors have each provided a full translation of the separate opinion.(1) The chapters conclude with the commentary of the author on the judgment and the opinion, styled in the construct of an annotation. Each chapter closely follows a pre-determined uniform format, with authors being asked to render their treatment of their ‘own’ judgment and opinion via the same steps.

While seeking consistency in the chapters of a multi-authored volume is naturally desirable, the design of the chapters in this volume (and strict commitment to it on the part of the authors), holds particular importance in light of the long term aspirations accompanying our project. Paramount considerations in this regard were to create a structure which compelled authors - in the style of the opinions of Judge Pinto de Albuquerque - to methodically analyze and discuss case law of the ECtHR Sayfa XLV and to do so in a manner which can be of optimal service to the legal community for which the commentary is intended.

The need for consistent, methodic treatment and communicative accessibility for the target audience is of course strongly associated with the complexity of ECtHR case law. Following, chronicling and annotating appropriately the monumental body of case law rendered by the ECtHR presents under all circumstances an arduous challenge. Temporally spanning six decades of output, spatially attaching to a highly extensive and vibrantly coloured jurisdictional panorama, neither this sexagenarian itself, nor its labours, delivers an easy portrait. Capturing ECtHR case law, doing justice to the depth and breadth of its content and complexities, requires built-in parameters and vectors to demarcate and guide and, as no rendition can be exhaustive, selection of a particular narrative.

The first objective of our book - to highlight and ponder the opinions of Judge Pinto de Albuquerque - represents just one amongst a myriad of possible thematic vantage-points to be taken in constructing an account, one manner in which to relate ‘a story’ of the ECtHR and its case law, looking upon its courtyard through the window of one of its judges, recalling a therewith somewhat personalized history, through the instrument of his or her separate opinions. For this account to still provide a generalized representation of case law however, a requirement would be that the log of an individual judge’s separate opinions be comprehensive, at least expansive, as well as offer alternate perspectives to deepen dimensionally the case law to which it is aggregately annexed. Preferably, such a diary also reveals exponentially evolving, inter-connected and ultimately over-arching theories and reflections on the part of that judge, built up in the course of judicial experience. That being precisely what is offered by Judge Pinto de Albuquerque’s catalogue of opinions, creating this volume from what may seem to entail a soliloquy-type narrative, rather means for us that we, taking a route through cases selected by us as being representative and illustrative of important issues, are also able to offer indeed a more broad an inclusive perspective of ECtHR case law at large. Sayfa XLVI

What we intend therewith is certainly not to establish an exhaustive overview and analysis of case law in a particular legal domain, such as criminal justice, in relation to specific Convention provisions or with respect to particular themes within case law, but rather, using Judge Pinto de Albuquerque’s separate opinions as a mediating device, to connect closely to the nature of ECtHR case law, its features, its behavior, its proclivities under different circumstances, its strengths and weaknesses, its constancies and caprices ... how to understand it, wield it and, ultimately, participate in it. Judge Pinto de Albuquerque’s opinions, characterized by a distinct individual authorial style, provide us access to such deeper understanding. Often, the separate opinions, reject a casuistic tactic and analyze issues from a principled approach which is grounded on a solid and in-depth discussion of the relevant principles of theory of law. In them, issues are positioned in a global perspective, using comparative law studies, confronting pertinent hard and soft international law sources and analyzing relevant academic literature. The opinions utilize creative methodological tools, such as sociological and statistical information, for example to assess the real situation on the ground, showing how the Court has at its disposal a wide array of devices to propel human rights law.

Through his modus of reasoning, the reader is secured vast contextual insight and provided with the ability to derive an own view on the legal issues at stake, importantly with a sharpened perception of aspects of cases which may have remained under-reflected in judgments. The opinions shine new light on judgments, show how they can be considered from different perspectives in the greater scheme of the European and global Human rights enterprise. They pick up on trends and assess the advantages and disadvantages thereof, all the while with eyes locked on the prize … the object and purpose of it all … to secure and progress human rights law in our joint European home. As we read on and see the methodological approach repeated opinion after opinion, our knowledge of ECHR law, as developed by the Court in its supervisory function, grows exponentially, but, more importantly, our ability to discern the mechanics, the rhythm and timbre of ECtHR case law is keenly awak- Sayfa XLVII ened. In the end, the opinions do not only steer, but teach how to drive. That is fundamentally important, as being able to operate the heavy and complex machinery of ECtHR adjudication is crucial to the effective and appropriate transposition of case law in the context of the own national legal system.

With the objective of capturing the spirit of ECtHR case law through the looking glass of selected opinions, deployment of an effective format becomes crucial. The chapters must clearly and reliably relate the outcome of cases and the reasoning of the Court. The integral translation of Judge Pinto de Albuquerque’s opinion provides the reader with full access to his commentary. The annotations within the chapters must then do more, namely, following the lead of Judge Pinto de Albuquerque, be able to highlight the ‘true’ cruces of judgments, especially as they relate to the Turkish context. In some cases, those may lie simply in the substantive outcome, but in others it may be something else - the use, or non-use of interpretative devices, the (type of) reasoning deployed, (in)consistency in approach, or a disconnect with local factual and legal circumstance. National lawyers must always ponder what the implications of a judgment is at the national level and what problems may arise in its effectuation. This may particularly be the case where judgments rendered against other member states are concerned, where an adjudicated issue also has potential implications in the own domestic sphere and must be transposed to it. Judge Pinto de Albuquerque’s opinions guide in the direction of what is remarkable about judgments, but it is then up to ‘co-commentators’ at the national level to further matriculate case law in their own systems, if need be through conversion into functionally equivalent protection suited to the own legal and factual ecology. If the national lawyer is able to do this, the diffusion of case law will be greatly facilitated, not only in a top-down direction from the Court to the national jurisdiction, but also bottom-up, from the national to the supranational. The firmer the grip of the national lawyer on case law, the greater will also be the ability of that lawyer to understand and illuminate where case law may be misaligned with the national context, where that Sayfa XLVIII context may have been misunderstood and therewith aid the Court in refining its own comprehension.

Not only because of the complexity of ECtHR case law, but even only because of the vastness of the output of the Court, developing and maintaining a solid grip on jurisprudence is challenging and requires a collaborative and dedicated approach on the part of its users. This requires active, systematic, participation on the part of the legal community as a whole, in faithfully following case law, analyzing it, being critical of it, adding to it and generating ideas for it to move in right directions. Our hope is that this book will contribute to a vigorous and constructive correspondence on ECHR law in this sense, both between actors on the national plane and between Turkish legal actors and Court.

As such, the chapters of the book are designed to lay a solid foundation - which we hope will be built upon in the future - for the development of (i) a durable and broad archive of case law, selected by Turkish lawyers as particularly pertinent to the Turkish context and (ii) a mainframe with built in formats facilitating ordered, methodical analysis and consideration by the broad legal community. Key concerns in that regard are that a basis be created for a living chronicle which is user-friendly and easily accessible in terms of participation and durable. Grounded in such considerations the chapter structure in this book is as follows.

Each chapter details at its starting point the pertinent Convention provisions which are at issue in the judgment and keywords relating to (i) its substance; (ii) the main points of the separate opinion and (iii) important interfaces with Turkish law. At a glance, the reader can therewith assess whether or not the case is useful for own purposes. The ‘structured summaries’ of our chapters consist of the following parts. In their first sections, they provide a summary of the facts and circumstances of the case, a description of the national proceedings and the outcome thereof. Subsequently, set headings refer the reader to (i) the date of the submission of complaints, the proceedings leading up to the judgment in Strasbourg, (ii) the complaints of the applicant(s) and (iii) a summary of the Court’s judgment, including a representation of the voting. The Sayfa XLIX second part of the chapters regard integral translations of the separate opinions of Judge Pinto de Albuquerque, some of which are authored by him alone, while in some he is joined by other Judges.

The third part of the chapters is again structured, with authors constructing their commentary under the following headings: (i) the importance of the judgment in and of itself (therewith marking out what is remarkable about it and what is to be particularly discussed in the annotation); (ii) the manner in which the judgment relates to and is to be positioned within existing ECtHR case law (whether or not there is any inconsistency, departure or otherwise important relationship with other judgments); (iii) the relevance for and meaning of the judgment in the Turkish context and (iv) the own analysis and opinion - in free form - of the author. In ‘positioning’ judgments in case law at large, the authors were asked, with an eye on building a complete picture for themselves, to go through the case law mentioned by the Court in the judgment itself and to check whether or not newer judgments exist on the issues featured in their own chapter and to relate any important developments in that regard. Where they considered that necessary, in order to demonstrate important broader discussions, authors were also asked to reflect on important issues contained in other separate opinions attached to their judgments. With an eye on transposition to the Turkish context, guidance was of course to especially consider any ‘similar’ judgments rendered against Turkey as a respondent state. In the sections devoted to that transposition, the authors were asked to provide an impression of Turkish law, including case law of the Turkish Constitutional Court, the Supreme Court and other (High) Courts, but also to address factual and legal issues playing out in the judgment and discuss the meaning thereof in the Turkish context, with specific guidance being provided to authors with respect to potential avenues to explore in this regard in the review process.

Generally, but particularly in the free form final sections, authors were asked to not only annotate the judgment and its implications for the Turkish legal system, but also include own comments on Judge Pinto de Albuquerque’s opinion. The basis for doing so being established Sayfa L though the deep immersion in the opinions through the act of integral translation thereof, the authors were therewith nudged to take on his critical vantage-point and methodology and contemplate the essence of his opinions. An important note in this regard was to, where pertinent and possible, focus particularly on the use of interpretative devices and maxims by the Court, considering this by default as an important theme heavily featuring in Judge Pinto de Albuquerque’s own discourse with case law. In this regard, the authors were also asked to reflect generally on the Court’s approach to interpretative methodology and its past and current tendencies in this respect, particularly connecting the intrinsic functionalities of interpretative devices and their ability to push and pull in diverse directions - how deference vis-à-vis national authorities, broad margins of appreciation, subsidiarity, process-based review operate … versus judicial activism and autonomy, as well as the furtherance of harmony with softly building, progressive international consensus on expansive human rights protection. Most importantly, in this final section, our authors were invited to proclaim loudly their own critical opinions - as to the judgments, Judge Pinto de Albuquerque’s arguments with respect to them and their appraisal of the proper role of the Court and the meaning of its case law for Turkey.

3. The selection of judgments and opinions

Finally, some remarks as to how the judgments and opinions included in this book were selected are in order. With a total of 160 opinions authored by Judge Pinto de Albuquerque in 155 cases, there is a great bounty to choose from. Our selection process having being completed in the second half of 2019, opinions rendered after that time, are for that reason not included. As has already been mentioned above, most of our authors (as well as the editors), being criminal lawyers, a main gravitation to cases within criminal justice themes was both natural and logical. With these parameters, the catalogue of possibilities is however hardly reduced to workable proportions. Doubtless, given the enthusiasm with which our invitations to authors were met, had we not at one point simply stopped the process of selection, many more of the opinions could have Sayfa LI been included. Nevertheless, so extensive an approach was not required for our purposes and the assortment of the 29 opinions chosen from a longer list by our authors formed for us a great representation.

Remarkable, for this Turkish volume, may at first glance be that only one of the chapters is devoted to a case in which Turkey was a respondent state. However, while a volume devoted to the analysis of judgments rendered against Turkey would of course have its own merits, the absence of a focus thereupon in our book lies in simple reasons. Judge Pinto de Albuquerque has authored opinions in Turkish cases, however these represent a small minority within the whole catalogue. Importantly, in choosing from the available set, an early decision was to prefer in principle cases which previously have not been translated into Turkish. Following moreover the reasoning that the reader will already be familiar with judgments rendered against Turkey, our selection finally was determined on the basis of substantive importance alone.

As such, the separate opinions presented in this book were chosen because they all are of interest to the Turkish reader, but also to any reader interested in ECtHR case law. The wide range of issues, whose urgency and universality are undisputable, are related (non-exhaustively) to constitutional law, such as in terms of the relation between the ECHR and the Constitutions of the Contracting Parties or the distribution of power between the European Court of Human Rights and the Supreme and Constitutional Courts of the European States; the human rights obligations of Contracting Parties in the context of their membership of other international organizations; the execution of judgments; protection of the peaceful enjoyment of property in the context of public procurement arrangements in the field of education; the fight against terrorism; the increasingly sophisticated case law dealing with positive obligations generally, but also particularly in relation to (sexual) offences against minors, domestic violence, human trafficking and the right to health (care); the right to liberty and security; the freedom of movement; issues relating to substantive criminal law, including the principle of legality and sanctions; the complex standards developed for procedural fairness in the case law of the Court, including those relating to the admissibility Sayfa LII of evidence in criminal proceedings, also in light of the use of special investigation methods, the (pre-trial) right to legal assistance and the presumption of innocence; the principle of ne bis in idem; prison standards; the evolving jurisprudence on life sentences and punitive sanctions otherwise; schemes for compensatory remedies for human rights; labour law, including privacy rights in workplace scenarios; the prohibition of discrimination and freedom of expression, in the physical and digital domain.

Two main concerns further guided the selection. One the one hand, we opted for cases which particularly demonstrate the deployment of interpretative devices developed by the Court - such as evolutive interpretation and autonomous reading of the concepts of the Convention - and concerns which may be had with respect to their gradual weakening as ordering devices. As has been alluded to above, this is a theme which appears broadly and strongly in Judge Pinto de Albuquerque’s opinions, and the authors were asked particularly to reflect where possible on these interpretative tools and principles and their operationalization by the Court. In the same vein, the opinions within our selection share as a commonality that they demonstrate well Judge Pinto de Albuquerque’s frequently voiced concerns with respect to the degree of deference in contemporary case law being accorded to national authority, with the patent risk of emptying the European system of human rights protection of any practical meaning.

The selection in brief, represents case law which we as a company, are greatly interested in. Our hope is that the reader will share this view and that all - scholars and students of law, practitioners - judges, prosecutors, investigators, lawyers, human rights activists and trainee lawyers - and ultimately anyone interested in legal problems and their interface with human rights, will find the outcome of our efforts useful. If so, we have our young authors to thank for it.