Thursday, September 27, 2007, Turkish Daily News
Orhan Kemal Cengiz
In the last piece of these series I will go into some technical details of the problems of the Patriarchate. As I said earlier, the Patriarchate’s structural issues are regulated by two documents issued by the Istanbul governorate: the Talimat and the Tezkere. In my opinion there is probably no effective way to explain to the European Court of Human Rights (ECHR) why the Patriarchate has not taken any legal action against these documents. This factor alone has a huge potential to jeopardize all other cases on the ecumenical character of the Patriarchate.
However, given the fact that all the time limits for litigation have expired, a case format that will not be rejected by the administrative courts in Turkey must be found. I can suggest two different strategies to overcome this time constraint.
The nonexistence theory
As the first alternative, the Patriarchate can argue that these documents should be deemed nonexistent. Nonexistent administrative acts are accepted as null because of the serious defects in their formation or the lack of authority of the organ issuing them. There is no time limit for bringing a case against nonexistent administrative actions (See Council of State judgement 1995/000397, 1997/001911). The argument here would be that since under the current legal system freedoms can only be limited by laws, a restriction on freedoms that has no law issued by Parliament on which to rely must be deemed ‘nonexistent.’
Creating a new situation
The second alternative is to create a new situation. In Turkey, an administrative case could be started in two ways: First, by bringing an administrative case against the administrative action directly and second, by applying to a hierarchically superior body for annulment of the decision of the lower one under Article 11 of the Code of Administrative Procedure (CAP). Under Article 10 of CAP, if the administration concerned does not respond to the application made to it within 60 days, it has been rejected. Upon rejection the applicant has 60 days to bring an administrative case against the rejection.
I think it is possible to make a fresh application to the Ministry of Interior to annul the Talimat and the Tezkere, and if the application is rejected the case can be brought before the administrative court and the European Court of Human Rights. The argument would be that these two documents are inapplicable, given the current situation of the Patriarchate in Turkey and the inability to elect a new Patriarch because of the dwindling Greek population in Turkey. The Patriarchate may request that the Ministry of the Interior enact a new regulation taking present conditions into account. A rejection can be appealed to the administrative court. However, in that case not the Talimat nor the Tezkere, but the refusal of the Ministry of Interior to issue a new regulation would be on trial.
In my opinion it is also possible to petition the administrative court for a stay order, and to apply to the ECHR when this legal avenue is exhausted. The case can thus be pursued at the domestic level through the ‘correction of a decision’ phase before the Council of State, while it is at the same time brought before the ECHR on the argument that Turkish domestic remedies are ineffective because they take too many years to complete.
Interferences with Patriarchate elections
The administration’s interference in the Patriarchate elections-by any authorities at any level-is subject to judicial supervision. In response to such interferences, the Patriarchate should bring an annulment case (under Article 125 of the Constitution, which states, ‘Recourse to judicial review shall be available against all actions and acts of the administration’) before the administrative courts within 60 days of the day on which it learns of the administrative action. Along with an annulment case the Patriarchate should petition the administrative court for a ‘stay order’ under Article 27 of the Code of Administrative Procedure. When the administrative court issues such an interim decision the administration is bound by it and must stop its action until the administrative court delivers its judgment on the substance of the case. If the administrative court denies the petition for a stay order, this can be appealed before the regional administrative court within seven days of receipt of the denial. The regional administrative court must decide on the ‘stay order request’ within seven days of receiving the appeal. The decision becomes final if the regional administrative court affirms the administrative court’s denial. In my opinion at this stage, with the stay denied but the case still pending before the administrative court, the Patriarchate could take its case before the ECHR. This could be possible because the long wait for adjudication of administrative cases in Turkey (five to six years) means that the interference in the Patriarchate elections would have, in all practical aspects, been upheld by the Turkish courts. Even if the ECHR were to reject this argument, a second application could be made after completing the whole process in Turkey, including the appeal and the correction of a decision processes before the Council of State.
The Patriarchate’s problems related to its ecumenical character can be solved through judgments issued by the ECHR. However, without exhausting the domestic remedies through strategic litigation, there is little chance to bring, let alone win, a case before the ECHR. So far, the Patriarchate has not taken any steps towards strategic litigation that would address its problems. The first and most important step the Patriarchate should take is to change its attitude on litigation. It must substitute a proactive stance, one that foresees the consequences of legal actions, for its current reactionary position towards the acts of the Turkish government. Only in this way can it seize new rights and gain legal recognition, including the recognition of its ecumenical status.
In this way the Ecumenical Patriarchate will not only solve its long-standing problems but will also contribute to the struggle for the advancement of human rights in Turkey.