Hrant Dink Murder on Seventh Anniversary of his Death

Kader Kadem | 13:20 | 0 Comments
The İstanbul 14th High Criminal Court has resumed hearing the case and ordered the arrest of two suspects in the trial of Dink's murder

Thousands took part in a walk in İstanbul on Sunday commemorating the seventh anniversary of the death of Hrant Dink, showing that there remains a persistent conviction that connections behind his assassination have been covered up by the state.

Turkish-Armenian journalist Hrant Dink was shot by a 17-year-old boy, Ogün Samast, on Jan. 19, 2007, in front of the Agos newspaper office, where he served as editor-in-chief. In January 2012, a court ruled on life imprisonment for Yasin Hayal on charges of instigating the murder; another suspect, Erhan Tuncel, was acquitted of murder charges.

In May 2013, the Supreme Court of Appeals overturned the court's original ruling, which dismissed the existence of an organized criminal network in the case. The lower court, which found no evidence that a terrorist organization was involved in Ogün Samast's assassination of Dink in 2007, had acquitted the suspects of claims that they had been forming a terrorist organization. The court did, however, say they were guilty of forming an illegal and armed organization to commit a crime, prohibited under Article 220 of the Turkish Penal Code (TCK).

As part of the ongoing trial over the assassination of Dink, Prosecutor Muammer Akkaş called on Sabri Uzun, the former head of intelligence for the National Police Department, to testify on Jan. 3, 2014. After the initial trial concluded, Akkaş, who is in charge of investigations into terrorism, re-evaluated the Dink case from the beginning, searching for anything previous investigators had missed. However, Uzun submitted to the office of the prosecutor a “heath report” that temporarily prevented him from testifying in court.

The İstanbul 14th High Criminal Court has resumed hearing the case and ordered the arrest of two suspects in the trial of Dink's murder, Osman Hayal and Zeynel Abidin, following their absence from a hearing held on Tuesday.

Journalist and Armenian activist Hayko Bağdat told Today's Zaman that one needs to question the state if there is talk of an organization involved in the murder. He also called the Dink assassination a result of a “national agreement” because of the alleged responsibility of multiple parts of the state.

According to him, not only could the Ergenekon terrorist organization have been a potential collaborator in Dink's killing, but so could have other forces within the state. Bağdat noted that the defendants involved in the case, specifically Ali Fuat Yılmazer and Ramazan Akyürek, were promoted in their government posts.

Criticizing Prosecutor Akkaş for not taking any action in the three years since he assumed the case, Bağdat says that due to a confidentiality clause, Dink's friends were not even able to hear who was called to testify in the case. “We only heard that Sabri Uzun was called to the court through the media even though we have been waiting at the door of the prosecutor for some explanation over the past three years,” he said.

Addressing this topic, human rights lawyer and Today's Zaman columnist Orhan Kemal Cengiz evaluates the Dink murder from a wider angle and argues that “institutionalized racism” in Turkey is responsible for the process that led to Dink's murder and the subsequent cover-up of his assassination. Referring to memorable photographs that a number of policemen took with the assassin Samast, Cengiz says that in any other country, a scandal like this would have ended with the resignation of the interior minister.

According to him, Turkey has not been able to face crimes committed particularly against non-Muslims and Armenians, which has led to cover-ups in the Dink case. He also said that İstanbul's governor at the time, Muammer Güler, who dismissed threats against Dink, was later promoted despite his negligence in the case. In reference to a race code attributed to non-Muslims by the state since 1923, Cengiz says profiling as such explains why we do not have any non-Muslim policemen, soldiers or prosecutors.

At the commemoration ceremony on Sunday, thousands walked from Taksim to the Agos newspaper office in Osmanbey. However, police restricted access to Gezi Park and Taksim Square before the walk started.

Talking to the media, Fethiye Çetin, the Dink family's lawyer, called for a re-evaluation of the Dink investigation from the beginning to the overturning at the Supreme Court of Appeals.

Current Editor-in-Chief of Agos Roper Koptaş also said those who covered up the murder have been declared innocent by the court, which is why the Dink family no longer attends the trials. “There has not been any progress made towards justice,” he said, arguing that the ruling Justice and Development Party (AK Party) government has responsibility in the case because it has not revealed those who planned and executed the murder, nor those who have overlooked the importance of it. “We do not expect justice from the state that committed the murder,” he also pointed out.

Meanwhile, a few policemen reportedly wore white berets during the gathering in front of Agos, which raised criticism from the participants because the white beret has become a symbol of Dink's murder since one was also worn by the assassin Samast on the day of the murder. Deputies Sırrı Süreyya Önder, Sezgin Tanrıkulu, Sebahat Tuncel, Ertuğrul Kürkçü, former deputy Ufuk Uras and columnist Cengiz Çandar also attended the event, in which people chanted for justice.

Davutoğlu clarifies ‘Assad lesser evil' statement

Kader Kadem | 13:24 | 0 Comments
“PM Erdoğan fans chant ‘Jihadist Erdoğan' in another public rally next to his home in İstanbul late Friday night,” Bozkurt wrote in a tweet on Dec. 27. Davutoğlu noted that he would also have a bilateral meeting with his French counterpart, Laurent Fabius, in the weekend.

Foreign Minister Ahmet Davutoğlu has slammed the use of the word “jihadist” in an English translation for the Turkish word “mücahid” to describe the slogan employed by some of Prime Minister Recep Tayyip Erdoğan's supporters, saying it is the reflection of a crusader and neo-Orientalist mentality.

Columnists and commentators in pro-government media have attacked Today's Zaman after its Ankara representative and columnist Abdullah Bozkurt translated on Twitter a slogan by Erdoğan's supporters at a rally in İstanbul as “jihadist Erdoğan.” The original slogan was “Mücahid Erdoğan,” the Turkish version of the Arabic word “mujahid,” which literally means “holy warrior” or “religious warrior.”

“PM Erdoğan fans chant ‘Jihadist Erdoğan' in another public rally next to his home in İstanbul late Friday night,” Bozkurt wrote in a tweet on Dec. 27.

Bozkurt instantly became the target of a wave of criticism by pro-government scribes on Twitter and later on in pro-government media, who claim that he intentionally attempted to present Erdoğan as a radical to the West and the US in particular knowing that the word “jihadist” has a very negative connotation there.

Burak Bekdil, a columnist for Hürriyet Daily News, also translated the same slogan as “jihadist Erdoğan” in a column published on Jan. 1, although it went largely unnoticed among the pro-government commentators.

Without openly naming Today's Zaman or Hürriyet Daily News, Davutoğlu on Friday said that the translation was an “attack which has no moral basis.”

“Referring to our prime minister by translating the word ‘jihadist' in an English translation for the Turkish ‘mücahid' is an aggressive attitude that does not have any moral basis. I am saying it openly; this is crusader mentality or the reflection of neo-orientalist mentality,” Davutoğlu said during a televised program aired on Kanal 24 TV on Thursday.

Davutoğlu maintained that it was an aggressive attitude not only against the prime minister but to the Islam civilization and its beliefs.

“Why shouldn't they [supporters of Erdoğan] chant? The names of the ones who resisted in Cyprus were also ‘mücahid.' The vital term of the operation conducted by the neo-orientalist in the recent times is the operation against jihad,” said Davutoğlu.

Davutoğlu also clarified his statement that "the wrong methods implemented by radicals in Syria have made the President Bashar al- Assad regime look like it is the ‘lesser evil'.”

Davutoğlu noted that in his statement there was no remark that meant Assad regime is the “lesser evil,” adding that it was hard to understand how media outlets made out such an understanding from his remarks.

“When reading the newspapers I was shocked. I find it beneficial for the press members to make evaluations within the context. What I have said is: Some circles are giving the violent acts of the al-Qaeda terrorist organization as an excuse and are trying to show Assad as a lesser evil. Today the Assad regime is the source of all evil in Syria. For the Syrian people, the greatest of all evils is the Assad regime, which is the source of any evil emerging in Syria,” said Davutoğlu.

The foreign minister noted that the Syrian people were facing great oppression from the regime, adding that in order to cover up the atrocities of the regime some circles were trying to keep al-Qaeda, particularly the the Islamic State of Iraq and the Levant (ISIL) threat, on the agenda.

The foreign minister, responding to questions from Anadolu editors on Thursday, slammed radical groups in Syria whose brutality and radical ideology have dampened Western support for the anti-regime opposition. “The wrong methods implemented by radicals have made the regime look like it is the lesser evil,” said Davutoğlu.

Turkey is a staunch supporter of the moderate rebels aligned with the Syrian national coalition, the body recognized by countries supporting the opposition as the only legitimate representative of the Syrian people, but they have lost ground in Syria as ISIL, which originally was established in Iraq, and another al-Qaeda affiliate, the al-Nusra Front, have gradually become the predominant forces in the anti-regime camp.

Davutoğlu left Ankara for Paris on Friday to attend first a meeting of the Middle East members of a core group of the Friends of Syria scheduled for Friday and then a gathering on Jan. 12 of the entire core group, consisting of both regional countries and the Western nations supporting the Syrian opposition. The meetings come prior to upcoming Geneva II conference, which aims to bring the opposition and the Syrian regime together to find a solution to the crisis. The peace conference for Syria is scheduled for Jan. 22.

Speaking to reporters before departing for Paris, Davutoğlu noted that in the meeting scheduled for Jan. 12, countries would focus on two main topics. “Eleven nations of the core group will discuss how to end the clashes and what could be done to provide humanitarian aid to the areas needed,” said Davutoğlu.

The aim of the meetings, which bring together the main countries supporting Syria's opposition, is to determine a common attitude, strategy and roadmap prior to the conference that will determine the future of the war-torn country.

Davutoğlu noted that he would also have a bilateral meeting with his French counterpart, Laurent Fabius, in the weekend.

“We hope that the parties that have good will are going to participate in the Geneva II. We hope that in Geneva II the Syrian regime will stop the inhumane attacks and show their good will towards eliminating the pain of the Syrian people. Turkey has does its utmost and will continue to do,” he added.

Davutoğlu also said there has been no official criticism directed at the government from the European Union regarding the reassignment of hundreds of police officials and proposed changes to the structure of the Supreme Board of Judges and Prosecutors (HSYK) -- the body responsible for appointments in the judiciary -- which has been criticized by the government since a corruption scandal erupted on Dec. 17 with detentions of officials, businessmen close to the government and sons of three ministers, who were later removed from their posts.

"There has been no direct criticism or statement [from the EU] directed towards us. I have had no contact [with EU officials]," said Davutoğlu in response to a question. He also defended proposed changes to the structure of the HSYK, saying they are designed to remove "gray areas" in relations between the judiciary and the executive branch of the state and prevent a possible "clash of jurisdiction" between the two.

Case of Ahmet Atahür Söyler v. Turkey

Kader Kadem | 07:25 | 0 Comments
Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ahmet Atahür SöylerCase of Ahmet Atahür Söyler v. Turkey (Application no. 29411/07)
JUDGMENT (17 September 2013)

1. The case originated in an application (no. 29411/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ahmet Atahür Söyler (“the applicant”), on 12 July 2007.

2. The applicant, who had been granted legal aid, was represented by Mr Serkan Cengiz, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicant alleged, in particular, that his inability to vote in the general elections while he was serving a prison sentence was in violation of Article 3 of Protocol No. 1 to the Convention (hereinafter “Article 3 of Protocol No. 1”).

4. On 31 March 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

5. The applicant was born in 1966 and lives in İzmir.

6. The applicant, a businessman, was convicted for having drawn a number of cheques without having sufficient funds in his bank account, an offence defined in the now repealed Law No. 3167 on Cheques (see “Relevant Domestic Law and Practice”). He was sentenced to a prison term of four years, eleven months and twenty-six days. He started serving his sentence on 11 April 2007.

7. While he was serving his prison sentence in Buca Prison in İzmir, the applicant wrote to the High Council for Elections on 28 June 2007 and stated that his name was on the electoral roll for the forthcoming general elections of 22 July 2007. He added that this was possibly due to an error on the part of the High Council for Elections which must have overlooked the fact that he, as a convicted prisoner, was unable to vote. Referring to the judgment in the case of Hirst v. the United Kingdom (no. 2) [GC] (no. 74025/01, ECHR 2005‑IX) the applicant requested that he should nevertheless be allowed to cast his vote in the July 2007 elections. He added that the right to vote was a right guaranteed in, inter alia, Article 3 of Protocol No. 1. He argued that the Hirst judgment, when read in conjunction with section 90 of the Constitution (see “Relevant Domestic Law and Practice” below), meant that the High Council for Elections was under an obligation to make the necessary arrangements in order to enable him to vote.

8. On 29 June 2007 the High Council for Elections replied to the applicant’s letter, and informed him that pursuant to section 7 § 3 of Law No. 298 (see “Relevant Domestic Law and Practice” below) it was not possible for him to vote. The High Council for Elections added that it was in the process of correcting its records to reflect the applicant’s status as a convicted prisoner.

9. A similarly worded letter was sent to the applicant by the Chairman of the High Council for Elections on 2 July 2007.

10. On 22 July 2007 general elections took place and the applicant was unable to cast his vote.

11. Although the applicant’s prison sentence was to end on 1 April 2012, he was released from prison on probation on 9 April 2009 pursuant to Law No. 647 for good behaviour (see “Relevant Domestic Law and Practice” below). However, in accordance with the applicable legislation, the applicant’s inability to vote continued until 1 April 2012.

12. Relevant parts of the Turkish Constitution provide as follows:
“Section 67:

In conformity with the conditions set forth in the law, citizens have the right to vote, to be elected, and to engage in political activities independently or in a political party, and to take part in a referendum.

Elections and referenda shall be held under the direction and supervision of the judiciary, in accordance with the principles of free, equal, secret, and direct, universal suffrage, and public counting of the votes. However, the conditions under which the Turkish citizens who are abroad shall be able to exercise their right to vote, are regulated by law.

All Turkish citizens over 18 years of age shall have the right to vote in elections and to take part in referenda.

The exercise of these rights shall be regulated by law.
Privates and corporals serving in the armed services, students in military schools, and convicts in prisons excluding those convicted of negligent offences cannot vote. The High Council for Elections shall determine the measures to be taken to ensure the safety of the counting of votes when detainees in penal institutions or prisons vote; such voting is done under the on-site direction and supervision of authorized judge. The electoral laws shall be drawn up in such a way as to reconcile the principles of fair representation and consistency in administration.

The amendments made in the electoral laws shall not be applied to the elections to be held within the year from when the amendments come into force.

Section 90:
International agreements duly put into effect bear the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”

13. Section 7 of the Law on Basic Provisions Concerning Elections and on Registers of Voters (Law No. 298 of 1961) provides as follows:
The following persons cannot vote:
(1) Privates, corporals and sergeants performing their military service (this provision is applicable also to those on leave, whatever the reason for their leave),
(2) Students in military schools,
(3) Convicts in penitentiary establishments.”

14. Relevant provisions of section 53 of the Criminal Code (Law no. 5237 of 2004) provide as follows:
“(1) As the statutory consequence of imposition of a prison sentence for an offence committed intentionally, the person shall be deprived of the following [rights]:
a) Undertaking of permanent or temporary public duties, including membership of the Turkish National Assembly and all civil service and other duties which are offered through election or appointment by the State, city councils, town councils, village councils, or organisations controlled or supervised by them;
b) Voting, standing for election and enjoying all other political rights;
c) Exercising custodial rights as a parent; performing duties as a guardian or a trustee;
d) Chairing or auditing foundations, associations, unions, companies, cooperatives and political parties;

e) Performing a self-employed profession which is subject to regulation by public organisations or by chambers of commerce which have public status.
(2) The person cannot enjoy the [above-mentioned] rights until the completion of execution of the prison sentence to which he or she has been sentenced as a consequence of the commission of the offence.
(3) The provisions above which relate to the exercise of custodial rights as a parent, and duties as a guardian or a trustee shall not be applicable to the convicted person whose prison sentence is suspended or who is conditionally released from the prison. A decision may [also] be taken not to apply subsection 1 (e) above to a convict whose prison sentence is suspended.
(4) Sub-section 1 above shall not be applicable to persons whose short term prison sentence is suspended or to persons who were under the age of eighteen at the time of the commission of the offence.
(5) Where the person is sentenced for an offence committed by abusing one of the rights and powers mentioned in sub-section 1 above, a further prohibition of the enjoyment of the same right shall be imposed for a period equal to between a half and the whole length of the prison sentence.

15. According to section 49 § 2, a prison sentence for a period of less than one year shall be regarded as a short term prison sentence.

16. According to section 19 of the Law on the Execution of Punishments (Law No. 647) which was in force at the time of the calculation of the length of the applicant’s prison sentence, prisoners sentenced to a term of imprisonment could be conditionally released from prison for good behaviour after having served half of their sentences. However, for the purposes of section 53 (2) of the Criminal Code, the date of completion of the prison sentence is not the date of the conditional release, but the last day of the prison sentence handed down by the criminal court.

17. According to the Explanatory Report of the Criminal Code, the rationale behind section 53 of the Criminal Code is as follows:
“Society’s trust in the person is damaged on account of the offence committed by him or her. For that reason the convicted person is prevented from exercising certain rights which necessitate a relationship of trust...This deprivation cannot be indefinite. Since the rationale behind punishment is to ensure that the criminal comes to regret committing the offence and that he or she is reintroduced into society, deprivations imposed for the commission of the offence shall continue until the end of the execution of the punishment. Thus, the person will be behaving in accordance with the needs of the execution of his punishment and, when he has done so, he will be declaring to society that he has once again become a trustworthy person...”.

18. According to Law on Cheques (Law No. 5941) which entered into force on 20 December 2009 and which was amended by Law No. 6273 on 3 February 2012, drawing cheques without having sufficient funds in the bank account no longer carries a prison sentence. Instead, the person is prevented from having a cheque book until he has paid his debt together with its interest.

19. In its decision handed down in an unrelated case (decision no. 2006/11-183 E., 2006/216 K.) the Grand Chamber of the Criminal Division of the Court of Cassation held the following in relation to section 53 of the Criminal Code:
“...Although no mention was made of the restrictions mentioned in subsection 1 of section 53 of the Criminal Code in the judgment [convicting the appellant], [those] restrictions are the natural consequence of the conviction and do not have to be mentioned in the judgment for them to be applicable. Therefore, when [the judgment] is enforced, section 53 will be applied and the restrictions mentioned in subsection 1 (a-e) will come into play. Although after his conditional release from the prison the [appellant] will be able to exercise his powers [mentioned in 53 § 1 (c) of the Criminal Code], restrictions placed on his other rights will continue until his sentence has been executed fully...”.

20. A description of relevant international materials and comparative law can be found in Scoppola v. Italy (no. 3) [GC] (no. 126/05, §§ 40-60, 22 May 2012).

21. The applicant argued that his disenfranchisement breached his rights guaranteed in Article 3 of Protocol No. 1 which provides as follows:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

22. The Government contested the applicant’s arguments.

A. Admissibility
23. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits
24. The applicant complained that his disenfranchisement was in breach of Article 3 of Protocol No. 1. He maintained that he had not only been unable to vote in the general elections held in July 2007 while he was being detained in the prison, but also in the general elections of 2011 held after his conditional release. The reason for this was that, even though he was conditionally released from prison on 9 April 2009, the official date for the completion of the execution of his sentence was 1 April 2012 (see paragraph 11 above).

25. The applicant submitted that he had been a businessman and owned a company at the beginning of the 2000s. He had been convicted as a result of several unpaid cheques which had been drawn by him when his business was affected by the severe economic crisis in Turkey which eventually bankrupted him. Thus, the offence committed by him did not mean that he was so morally or mentally untrustworthy as to be prevented from exercising his civic duties.

26. The applicant considered that the national legislation on disenfranchisement did not take into account the nature of the offence or the severity of the punishment. As such, it was wholly disproportionate in its application. The only criterion taken into account when imposing the ban was the element of “intention" in the commission of the offence.

27. Referring to the judgment in the case of Hirst (no. 2) [GC] (cited above, §§ 71 and 82), the applicant argued that he had been the victim of an automatic ban. Referring to the statistics issued by the Ministry of Justice, the applicant added that the blanket ban on voting did not reflect the principles of today’s democratic society, and affected a great proportion of the 80,448 convicted inmates in prisons in Turkey (November 2010 figures).
28. The Government acknowledged that Article 3 of Protocol No. 1 guaranteed individual rights, including the right to vote and to stand for election, and that the applicant’s right to vote had been restricted in the present case.

29. The Government referred to the Explanatory Report of the Criminal Code where the rationale behind section 53 of the Criminal Code is set out (see § 17 above in “Relevant Domestic Law and Practice”), and submitted that the legitimate aim of the restriction was the applicant’s rehabilitation. They maintained that the restriction on the right to vote in Turkey was not a ‘blanket ban’ because the applicable legislation limited the scope of the restriction in accordance with the nature of the offence. Referring to the judgment in the case of Hirst (no. 2) [GC] (cited above), the Government argued that, unlike the situation in the United Kingdom, the Turkish legislation restricting the right to vote was only applicable to persons who has committed offences intentionally. In the United Kingdom the legislation was applicable to all convicted prisoners detained in prisons, irrespective of the length of their sentence, the nature or gravity of the offence, and their individual circumstances.

30. In Turkey the constitutional provisions concerning the issue of prisoners’ voting had undergone two amendments in 1995 and 2001. In 1995 the Constitution had been amended to exclude remand prisoners from the scope of the restriction because disenfranchising a person detained in prison pending the outcome of the criminal proceedings against him was considered incompatible with the principle of presumption of innocence. In the 2001 amendment, persons convicted of offences committed involuntarily had been excluded from the restrictions on voting. As it stood today, the national legislation was applicable only in respect of offences committed intentionally. In the opinion of the Government, the offences committed intentionally were “stronger” in nature as they included the element of “intention”.

31. The Court notes that the general principles applicable in the present case can be found in Mathieu-Mohin and Clerfayt v. Belgium (2 March 1987, § 46-54, Series A no. 113); Hirst (no. 2) ([GC], cited above, §§ 56-71, 74-77 and 82); Frodl v. Austria (no. 20201/04, §§ 28 and 33-35, 8 April 2010), and Scoppola v. Italy (no. 3) ([GC], cited above, §§ 82-84, 96, 99 and 101-102). The Court will examine the applicant’s complaints in the light of the principles identified in those judgments.

32. The Court observes at the outset that the applicant, who had been sentenced to a prison term of four years, eleven months and twenty-six days, began serving his sentence on 11 April 2007 (see paragraph 6 above). In accordance with the applicable legislation, his disenfranchisement did not end when he was conditionally released from prison on 9 April 2009, but continued until the initially foreseen date of release on 1 April 2012 (see paragraphs 11, 14 and 19 above). Between 11 April 2007 and 1 April 2012 two general elections were held and the applicant was unable to vote in either of them. Having thus established that the applicant was directly affected by the measure foreseen in the national legislation which prevented him from voting on two occasions, the Court will proceed to examine whether the measure in question pursued a legitimate aim and did so in a proportionate manner.

33. According to the Court’s established case-law referred to above, the rights enshrined in Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and the Contracting States must be afforded a wide margin of appreciation in this sphere. There are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into its own democratic vision (see Scoppola (no. 3) [GC], cited above, § 83 and the cases cited therein).

34. However, it is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (ibid. § 84 and the cases cited therein).

35. Furthermore, an indiscriminate restriction applicable automatically to prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances, must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1 (Hirst (no. 2) [GC], cited above, § 82).

36. As it appears from the relevant national provisions summarised above in the “Relevant Domestic Law and Practice”, persons convicted of having intentionally committed an offence are unable to vote. Moreover, their disenfranchisement does not come to an end on release from prison on probation, but continues until the end of the period of the original sentence handed down at the time of their conviction. In fact, pursuant to section 53 § 3 of the Criminal Code, even when a prison sentence which is longer than one year is suspended and the convicted person does not serve any time in the prison, he or she will still be unable to vote for the duration of the suspension of the sentence (see paragraph 14 above).

37. Having regard to the Government’s submission that the restrictions on the applicant’s right to vote pursued the aim of rehabilitating him, and having further regard to the rationale of section 53 of the Criminal Code set out in the Explanatory Report (see paragraph 17 above) relied on by the Government, the Court is prepared to accept, notwithstanding whatever doubt there may be as to the efficacy of achieving these aims through a bar on voting, that the restriction on the applicant’s right to vote pursued the aim of encouraging citizen-like conduct, and considers that that aim is not untenable or incompatible per se with the right guaranteed under Article 3 of Protocol No. 1 (Hirst (no. 2) [GC], cited above, §§ 74-75).

38. In light of the above, and in so far as they are applicable to convicts who do not even serve a prison term, the Court considers that the restrictions placed on convicted prisoners’ voting rights in Turkey are harsher and more far-reaching than those applicable in the United Kingdom, Austria and Italy, which have been the subject matter of examination by the Court in its judgments in the above-mentioned cases of Hirst (no. 2) [GC], Frodl and Scoppola (no. 3) [GC].

39. Furthermore, although the removal of the right to vote without any ad hoc judicial decision is not among the essential criteria for determining the proportionality of a disenfranchisement measure (see Scoppola (no. 3) [GC], cited above, § 99) and it does not, in itself, give rise to a violation of Article 3 of Protocol No. 1 (ibid, §§ 103-104), the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners’ voting rights (ibid. § 99). In Turkey, disenfranchisement is an automatic consequence derived from the statute, and is therefore not left to the discretion or supervision of the judge.

40. Indeed, according to the Grand Chamber of the Criminal Division of the Court of Cassation which examined section 53 of the Criminal Code in another case (paragraph 19 above), the judgment convicting the person does not have to make a mention of the disenfranchisement for it to be applicable.

41. Moreover, unlike the situation in Italy which was examined by the Grand Chamber in its judgment in the case of Scoppola (no. 3), the measure restricting the right to vote in Turkey is indiscriminate in its application in that it does not take into account the nature or gravity of the offence, the length of the prison sentence ­– leaving aside the suspended sentences shorter than one year (see paragraph 14 above) – or the individual circumstances of the convicted persons. The Turkish legislation contains no express provisions categorising or specifying any offences for which disenfranchisement is foreseen (see, a contrario, Scoppola (no. 3) [GC], cited above, § 105).

42. The Court does not consider that the sole requirement of the element of “intent” in the commission of the offence is sufficient to lead it to conclude that the current legal framework adequately protects the rights in question and does not impair their very essence or deprive them of their effectiveness. To that end, it disagrees with the Government that the legal framework takes into account the nature of the offence (see paragraph 29 above). Beyond submitting that the offences committed intentionally are “stronger”, the Government have not sought to explain how and why excluding all persons convicted of having intentionally committed offences was reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see Scoppola (no. 3) [GC], cited above, § 84).

43. In any event, the Court observes that a similar legal framework, in fact one more favourable to prisoners, has already been examined by the Court in its judgment in the above-mentioned case of Frodl. In Austria, only prisoners who have committed with intent one or more criminal offences and been sentenced with final effect to a term of imprisonment of more than one year, forfeit the right to vote.

44. Furthermore, the Court observes that the seriousness of the offences committed by the applicant in the case of Scoppola (no. 3) was one of the factors taken into account by the Grand Chamber in reaching its conclusion that the disenfranchisement in the Italian system was not applied automatically or indiscriminately (§ 107). In the present case, the offence committed by the applicant was drawing cheques without having sufficient funds in his account. As such, the Court considers that the applicant’s case illustrates the indiscriminate application of the restriction even to persons convicted of relatively minor offences. The Court observes in this connection that drawing cheques without having sufficient funds in the bank account no longer carries a prison sentence (see paragraph 18 in “Relevant Domestic Law and Practice” above).

45. Furthermore, having regard to the nature of the offence committed by the applicant, the Court is also unable to see any rational connection between the sanction and the conduct and circumstances of the applicant. It reiterates in this connection that the severe measure of disenfranchisement must not be resorted to lightly and that the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned (see Hirst (no. 2) [GC], cited above, § 71).

46. In light of the above, the Court cannot conclude that the legislature in Turkey has shown the requisite concern which, according to the Grand Chamber in the above-mentioned case of Scoppola (no.3), should exist in order to adjust the application of the measure to the particular circumstances of each case by taking into account such factors as the gravity of the offence committed and the conduct of the offender (ibid. § 106).

47. The Court concludes that the automatic and indiscriminate application of the harsh measure in Turkey on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, and that there has been a breach of Article 3 of Protocol No. 1 in the present case.

48. The applicant argued that his disenfranchisement as a convicted prisoner was discriminatory.

49. The Court considers that this part of the application may be declared admissible. However, having regard to its conclusion above under Article 3 of Protocol No. 1, it finds that no separate issue arises under Article 14 of the Convention (see Hirst (no.2) [GC], cited above, § 87).III. OTHER ALLEGED

50. Lastly, the applicant complained of a violation of Articles 6 and 13 of the Convention.

51. Having regard to the documents in its possession, the Court finds that this part of the application does not disclose any appearance of a violation of the Convention provisions. It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 § 3 (a) and 4 of the Convention.

52. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage
53. The applicant claimed 3,000 euros (EUR) in respect of non-pecuniary damage.

54. The Government considered that the finding of a violation would be sufficient to remedy any non-pecuniary damage.

55. Having regard to the circumstances of the case, the Court agrees with the Government and considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicant (see Hirst (no.2) [GC], cited above, §§ 93-94).

B. Costs and expenses
56. The applicant claimed EUR 912.50 for the costs and expenses incurred before the domestic courts and EUR 2,450 for those incurred before the Court. In support of his claim the applicant submitted to the Court a detailed breakdown of the costs incurred by him and his legal representative.

57. The Government thought that the applicant claimed EUR 6,362.50, and considered that sum to be excessive and unsupported by adequate documentation. They also argued that no awards could be made for the applicant’s costs and expenses incurred at the national level.

58. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In response to the Government’s argument concerning the costs and expenses relating to the proceedings at the national level, the Court reiterates that, if it finds that there has been a violation of the Convention, it may award the applicant the costs and expenses incurred before the national courts for the prevention or redress of the violation (see Société Colas Est and Others v. France, no. 37971/97, § 56, ECHR 2002‑III, and the cases cited therein). In the present case the applicant brought the substance of his Convention rights to the attention of the national authorities (see paragraph 7 above). In the light of the foregoing, the Court considers that the applicant has a valid claim in respect of part of the costs and expenses incurred at the national level.

59. Regard being had to the documentation in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads. From this sum should be deducted the EUR 850 granted to the applicant by way of legal aid under the Council of Europe’s legal aid scheme (see paragraph 2 above).

C. Default interest
60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

1. Declares the complaints under Article 14 of the Convention and Article 3 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of Protocol No. 1 to the Convention;

3. Holds that there is no need to examine the complaint under Article 14 of the Convention;

4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

5. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), less the EUR 850 (eight hundred and fifty euros) granted by way of legal aid, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant, in respect of his costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Case of Ahmet Atahür Söyler v. Turkey
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 27 August 2013,
Delivers the following judgment, which was adopted on that date

Obama’s Syria Debacle; Al Qaeda

Kader Kadem | 15:14 | 0 Comments
The pictures shocking. They show the savage execution of supporters of the Bachar El-Assad regime taken prisoner by the rebelsThe pictures shocking. They show the savage execution of supporters of the Bachar El-Assad regime taken prisoner by the rebels. We have chosen to publish them for the essential message they convey. Both sides engage in propaganda and diffuse pictures whose authenticity cannot be guaranteed. So we do not publish them.

This time, these photos were taken, last week, by a young independent photographer who has worked regularly in Syria. We have done our best to verify this information. Only the most bearable pictures from his reportage have been retained. Others, unbearable, will remain engraved in our memory.

We have no desire to compare the ravages caused by the Damascus government’s broad and pitiless repression of its own people with the atrocities of ferocious jihadists. These images of unjustifiable assassinations nevertheless overlap with those, equally abominable, of chemical weapons massacres.

In Syria, the horror is on both sides. A reality that is impossible to ignore. These barbaric acts pose a dilemma for the West. The desire to overthrow Bachar El-Assad will likely open the door to equally bloodthirsty Islamists. With the likelihood of military intervention decreasing, these are the stakes facing François Hollande and Barack Obama as they make their final decision.

For our reporter, Alfred de Montesquiou, these revolting photos lead us to doubt the humanistic intentions of the Syrian rebellion, and are not representative of the freedom fight engaged by the 100,000 to 150,000 people committed to bringing down the dictatorship in Damascus.

Nevertheless, they undoubtedly add an element to the debate, and inform the public. The assassins featured in these images are not representative of the Syrian opposition. Yet it must be acknowledged that these barbaric warmongers raise fear in public opinion. Their acts undermine the desire to help and support the opposition and lead us to doubt its ability to bring a democratic alternative to Damascus.

British Airways, Williams and others: Paid Annual Leave

Kader Kadem | 03:54 | 0 Comments
LORD MANCE (with whom Lord Hope, Lord Walker, Lord Clarke and Lord Sumption agree)  Introduction
LORD MANCE (with whom Lord Hope, Lord Walker, Lord Clarke and Lord Sumption agree)

1- By its judgment in this appeal dated 24 March 2010 the Supreme Court referred to the Court of Justice five questions regarding the nature and assessment of the concept of "paid annual leave" in articles 7 of Council Directives 93/104/EC and 2003/88/EC and clause 3 of the European Agreement annexed to and intended to be implemented under Council Directive 2000/79/EC. The Court of Justice by its judgment dated 15 September 2011 gave its response: British Airways plc v Williams (Case C-155/10) [2012] ICR 847. The parties are now at odds as to its consequences for the dispute between them.

2- Clause 3 of the European Agreement reads:
"(1) Mobile staff in civil aviation are entitled to paid annual leave of at least four weeks, in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
(2) The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated."

3- In the United Kingdom, The Civil Aviation (Working Time) Regulations 2004 (SI 2004/756) ("the Aviation Regulations") were introduced to comply with this country's obligations to give effect to Directive 2000/79/EC. The Aviation Regulations provide:
"4. (1) A crew member is entitled to paid annual leave of at least four weeks, or a proportion of four weeks in respect of a period of employment of less than one year.
(2) Leave to which a crew member is entitled under this regulation-
(a) may be taken in instalments;
(b) may not be replaced by a payment in lieu, except where the crew member's employment is terminated."

4- As the Supreme Court explained in its judgment dated 24 March 2010 the Aviation Regulations are part of a wider complex of legislation requiring paid annual leave, starting with a general requirement introduced by Directive 93/104/EC ("the Working Time Directive"). The Working Time Directive excluded various sectors, including air transport. Further, when the Working Time Directive was implemented by the Working Time Regulations 1998 (SI 1998/1833) ("the Working Time Regulations"), these made specific reference to sections 221 to 224 (and by implication sections 234 to 235) of the Employment Rights Act 1996, which contain a detailed scheme (originally introduced in the context of redundancy pay) for ascertaining a week's pay in the cases of employments with and without "normal working hours". In contrast, the Aviation Regulations neither contain nor refer to any such scheme. They leave the concept of "paid annual leave" undefined. Hence, the issues arising in this appeal.

5- The appellants are British Airways pilots. Their terms of employment, negotiated by their union, British Air Line Pilots Association ("BALPA"), are found in a Memorandum of Agreement ("MOA") which requires them to take 30 days' annual leave and entitles them to take a further two weeks' leave, save in the case of pilots with a Gatwick base, who are obliged to take 35 days' holiday and are entitled to a further seven days of leave. The MOA provides for pilots to receive (a) a fixed annual sum, plus two supplementary payments varying according to the time spent flying, consisting of (b) the Flying Pay Supplement ("FPS") paid at £10 per flying hour and (c) the Time Away from Base allowance ("TAFB") paid at £2.73 per hour. British Airways explains that TAFB was "introduced to replace meal allowances, sundries and the Gatwick Duty Allowance" and to be "increased in accordance with the UK Retail Prices Index for Catering – Restaurant Meals". Her Majesty's Revenue and Customs' attitude is that the TAFB is over-generous and that 18% of it is taxable, in effect as pure remuneration.

The history of the case to date
6- When the appeal first came before the Supreme Court, British Airways' primary submission was that the United Kingdom legislator, by omitting to introduce any detailed scheme for the calculation of "paid annual leave" like that provided under the Working Time Regulations, must be taken to have left this to be determined by collective or individual agreement between the parties, whatever might be the effect of the Aviation Directive. The Supreme Court was not at that time persuaded by this submission, and thought it likely to be possible to construe the Aviation Regulations to reflect what meaning the Aviation Directive might have. Hence, the reference made to the Court of Justice.

7- British Airways' second submission was that the Aviation Directive was to like effect, leaving the calculation of "paid annual leave" to collective or individual agreement between the parties. Its third submission, if this was wrong, was that the only constraint imposed by the Directive was that pay during annual leave must not be so low as to prevent or inhibit the taking of leave. Finally, it submitted that the fixed annual sum – (a) above – constituted the pilots' normal pay and was sufficiently comparable to remuneration received while working to satisfy the requirement for paid annual leave.

8- The questions referred to the Court of Justice by the Supreme Court were in these circumstances:
"(1) Under (a) articles 7 of Council Directives 93/104/EC and 2003/88/EC and (b) clause 3 of the European Agreement annexed to the Council Directive 2000/79/EC: (i) to what, if any, extent does European law define or lay down any requirements as to the nature and/or level of the payments required to be made in respect of periods of paid annual leave; and (ii) to what, if any, extent may member states determine how such payments are to be calculated?
(2) In particular, is it sufficient that, under national law and/or practice and/or under the collective agreements and/or contractual arrangements negotiated between employers and workers, the payment made enables and encourages the worker to take and to enjoy, in the fullest sense of these words, his or her annual leave; and does not involve any sensible risk that the worker will not do so?
(3) Or is it required that the pay should either (a) correspond precisely with or (b) be broadly comparable to the worker's "normal" pay?
Further, in the event of an affirmative answer to question (3)(a) or (b):
(4) Is the relevant measure or comparison: (a) pay that the worker would have earned during the particular leave period if he or she had been working, instead of on leave, or (b) pay which he or she was earning during some other, and if so what, period when he or she was working?
(5) How should "normal" or "comparable" pay be assessed in circumstances where: (a) a worker's remuneration while working is supplemented if and to the extent that he or she engages in a particular activity; (b) where there is an annual or other limit on the extent to which, or time during which, the worker may engage in that activity, and that limit has been already exceeded or almost exceeded at the time(s) when annual leave is taken, so that the worker would not in fact have been permitted to engage in that activity had he been working, instead of on leave?

9- The Court of Justice gave a compendious answer. It ruled (para 31) that article 7 of Directive 2003/88/EC and clause 3 of the European Agreement: "must be interpreted as meaning that an airline pilot is entitled, during his annual leave, not only to the maintenance of his basic salary, but also, first, to all the components intrinsically linked to the performance of the tasks which he is required to carry out under his contract of employment and in respect of which a monetary amount, included in the calculation of his total remuneration, is provided and, second, to all the elements relating to his personal and professional status as an airline pilot. It is for the national court to assess whether the various components comprising that worker's total remuneration meet those criteria."

10- The Court of Justice's reasoning makes clear that it was ruling against British Airways on questions (2), (3) and (5)(a): "20 The purpose of the requirement of payment for that leave is to put the worker, during such leave, in a position which is, as regards remuneration, comparable to periods of work …
21 … remuneration paid in respect of annual leave must, in principle, be determined in such a way as to correspond to the normal remuneration received by the worker. It also follows that an allowance, the amount of which is just sufficient to ensure that there is no serious risk that the worker will not take his leave, will not satisfy the requirements of European Union law."

11- The court went on, in further answer, to say that where, as here, pay was structured to involve several components, "a specific analysis" was required (para 22), because (para 23): "that structure cannot affect the worker's right … to enjoy, during his period of rest and relaxation, economic conditions which are comparable to those relating to the exercise of his employment" and

"24 Accordingly, any inconvenient aspect [sic] which is linked intrinsically to the performance of the tasks which the worker is required to carry out under his contract of employment and in respect of which a monetary amount is provided which is included in the calculation of the worker's total remuneration, such as, in the case of airline pilots, the time spent flying, must necessarily be taken into account for the purposes of the amount to which the worker is entitled during his annual leave.

25 By contrast, the components of the worker's total remuneration which are intended exclusively to cover occasional or ancillary costs arising at the time of performance of the tasks which the worker is required to carry out under his contract of employment, such as costs connected with the time that pilots have to spend away from base, need not be taken into account in the calculation of the payment to be made during annual leave.
26 In that regard, it is for the national court to assess the intrinsic link between the various components which make up the total remuneration of the worker and the performance of the tasks which he is required to carry out under his contract of employment. That assessment must be carried out on the basis of an average over a reference period which is judged to be representative and in the light of the principle established by the case law …, according to which Directive 2003/88 treats entitlement to annual leave and to a payment on that account as being two aspects of a single right...

27 That stated, it must also be pointed out that the court has already held that an employee, working as a purser for an airline company and transferred, by reason of her pregnancy, temporarily to ground work, was entitled, during her temporary transfer, not only to maintenance of her basic salary but also to pay components or supplementary allowances relating to her professional status as an employee. Accordingly, allowances relating to her seniority, her length of service and her professional qualifications had to be maintained: see, to that effect, Parviainen v Finnair Oyj (Case C-471/08) [2011] ICR 99; [2010] ECR I-6533, para 73. That case law also applies to a pregnant worker who has been granted leave from work: see Gassmayr v Bundesminister für Wissenschaft und Forschung (Case C-194/08) [2010] ECR I-6281, para 65.

28 It follows that, in addition to the components of the total remuneration set out in para 24 of the present judgment, all those which relate to the personal and professional status of an airline pilot must be maintained during that worker's paid annual leave."

12- The court ended its reasoning by repeating that "It is for the national court to assess whether the various components comprising that worker's total remuneration meet those criteria" (para 31). The court therefore drew a distinction relevant to TAFB between, on the one hand, remuneration, including remuneration based on personal or professional status, for all activities whether basic or "inconvenient" undertaken during employment (para 24) and, on the other hand, payments "intended exclusively to cover occasional or ancillary costs" (para 25) – costs which would not of course be incurred during holiday periods.

13- The court made clear in para 26 that it is "for the national court to assess" into which of the two categories identified in paras 24 and 25 any payment fell. When it went on in para 26 to state that "That assessment must be carried out on the basis of an average over a reference period which is judged to be representative", the most natural reading of the statement is that the court understood that this assessment was also something that the national court could and would judge for itself. The court's reasoning in para 26 further indicates that it contemplated an average over a reference period judged to be representative of "normal" working and remuneration, rather, therefore, than a calculation based on what the employee might have earned during the holiday period, had she or he then been working.

14- The concept of "a reference period … judged to be representative" recognises the exercise of judgment inherent in words like "representative" and "normal". The Court of Justice was not prescriptive as to what might or might not constitute a representative period. The court did not expressly address the question how far a member state or national court might adopt a standard period, applicable to a range of employees, like that required under sections 221 to 226 of the Employment Rights Act 1996. Different British Airways pilots may earn different supplementary amounts of FPS (or TAFB) according to their different flying patterns during different periods. This could no doubt be one factor to bear in mind in arriving at any reference period, whether for pilots generally or for a particular pilot. Further, the court did not specifically answer question (5)(b), which is potentially relevant since Regulation 9 of the Aviation regulations provides:
"in any month
(a) no person … shall act as a crew member during the course of his working time, if during the period of 12 months expiring at the end of month before the month in question the aggregate block flying time of that person exceeds 900 hours; and (b) no crew member employed by him shall have a total annual working time of more than 2,000 hours during the period of 12 months expiring at the end of the month before the month in question".
If a reference period of the previous 10 or 11 months at work were taken, a pilot might in that period have exhausted his or her permitted 900 hours. If an average is in such circumstances to be calculated including all 900 hours, the pilot would (as he or she arguably should) receive paid holiday pay higher than that receivable by a pilot who had only flown 800 hours in the same 10 or 11 months.

The current issues
15- In the light of the Court of Justice's judgment, the appellants submit that (i) each of their claims can and should now be remitted to the Employment Tribunal for assessment by that tribunal of a representative period and of the relevant remuneration earned during that period, and that (ii) such remuneration should include not merely basic pay and FPS, but also 18% of TAFB. British Airways, on the other hand, submits that (i) the Aviation Regulations are too unspecific to give effect to the Aviation Directive, in the absence of any relevant legislative scheme, and (ii) that the whole of the TAFB should be excluded from remuneration for the purposes of any calculation.

16- It is common ground that article 7 of the Aviation Directive does not have direct effect against British Airways. In Dominguez v Centre Informatique du Centre Ouest Atlantique (Case C-282/19) [2012] ICR D23, the Court of Justice treated the equivalently worded article 7 of the Working Time Directive as directly effective against the State. But British Airways is not an emanation of the State. Article 7 of the Aviation Directive can only therefore be invoked against British Airways if it has been effectively implemented at domestic level. In support of its first, general submission, British Airways thus argues that this has not occurred; that the concept of "an average over a reference period which is judged to be representative" is open-ended and so open to differing assessments that implementation of the Aviation Directive in national law requires legislation; and that the mere echoing in regulation 4(1) of the phrase "paid annual leave" which appears in article 7 is insufficient for effective implementation of the Directive.

17- At the European legal level, British Airways invokes the principle of legal certainty; at the domestic level, it submits that no possibility exists of "interpreting" the Aviation Regulations as implementing the Aviation Directive effectively, pursuant to the well-established duty to interpret domestic legislation so far as possible in a manner conforming with any obligations imposed by a Directive: see, inter alia, Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89)[1990] ECR I-4135 and Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (Joined Cases C-397-403/01) [2005] ICR 1307, paras 109-120.

The impossibility of a conforming interpretation is reinforced, British Airways submits, by the consideration that the Merchant Shipping (Hours of Work) Regulations 2002 (SI 2002/2125), although not directly in issue, provide (in regulation 12) for the same entitlement to paid annual leave, but go on to provide not for civil liability, but for criminal liability in the event of any contravention of regulation 12.

British Airways argue that the need for legal certainty and the obstacles to any form of interpretive solution are all the greater when the concept of "paid annual leave" has, albeit in the context of other Regulations, penal implications. British Airways invokes in this connection the principle that the interpretive obligation recognised in cases such as Marleasing should not be used with the effect of "determining or aggravating" domestic criminal liability: Criminal Proceedings against Kolpinghuis Nijmegen BV (Case 80/86) [1987] ECR 3969 , para 14 and Criminal Proceedings against Arcaro (Case C-168/95) [1997] All ER (EC) 82, para 42.

18- British Airways notes that the present situation has only arisen because pilots have been successful in the Court of Justice in challenging the parties' collective agreement in the MOA, according to which basic pay was to be taken as the measure of paid annual leave and increments in basic pay were from time to time negotiated. Had the Court of Justice restricted the payment required during annual leave to basic pay or allowed the parties to do so, there would have been no problem in knowing what the Directive required or in giving effect to it at national level. As it is, however, British Airways submits, the requirements of the Directive, as explained by the court, require a detailed legislative scheme, which is not found in the Aviation Regulations and could not be supplied by an employment tribunal.

19- Finally, British Airways seeks to gain support for its case from the absence in regulation 18 of the Aviation Regulations of any explicit power in the employment tribunal to assess or award compensation for paid annual leave. That, British Airways submits, is precisely because no one conceived that paid annual leave could, under the Aviation Regulations, mean anything other than basic pay, as had been collectively agreed by the MOA. Now that it is clear that it means more, the absence of any such power confirms the absence of any legislative scheme regarding paid annual leave sufficient to implement the Aviation Directive or to have any domestic effect.
Analysis on issue of uncertainty and domestic effect

20- I do not accept British Airways' submissions. Their foundation is the open-endedness of the exercise of judgment inherent in the concept of "an average over a reference period which is judged to be representative". The domestic legislator may well have assumed, as British Airways submits, that the assessment of paid annual leave would be a simple matter, with any problems being resolved by collective agreement. The more sophisticated assessment now revealed to be necessary and the absence of any collective agreement leave scope for differences of view about the period to be taken. On the other hand, a general legislative scheme of the sort that British Airways maintains to be required could itself have risked being over-prescriptive. Be that as it may, the legislator chose in the Aviation Regulations simply to repeat the relevant language of the Aviation Directive. The Court of Justice having explained the principles behind article 7 of the Working Time Directive and clause 3 of the European Agreement, the same principles must be taken to have been intended to govern the same wording where it appears in regulation 4 of the Aviation Regulations.

21- The solution, in my opinion, is that, in these circumstances and in the absence of any other means of ascertaining a representative reference period, the choice of a reference period is in the first instance for British Airways to make. This is a choice to be made by British Airways within the parameters of what can (reasonably) be "judged to be representative". Failing such a choice, British Airways cannot complain if a court or tribunal takes its own view of what best represents a representative period in the case of an individual employee who brings a case to it. This in my opinion matches the Court of Justice's own expectations: see para 13 above. It would be surprising if domestic courts or tribunals were to conclude that they could not give effect to a domestic article using identical language to the Aviation Directive in the way in which the Court of Justice contemplated that the language of the Directive envisages. This is reinforced by the Court of Justice's conclusion that, in a context where the employer is the State, article 7 is directly effective (and so, by necessary implication, sufficiently certain for that purpose).

22- I am unimpressed by the submission that, on the basis that the same approach is to be transposed to the same language in the Merchant Shipping (Hours of Work) Regulations 2002, the result would be to expose employers to criminal liability for failing to make an appropriate choice within uncertain parameters. So long as an employer's choice is within those parameters, no problem arises, and, if a bona fide choice were to fall outside such parameters, the likelihood of a criminal prosecution would appear remote. If the problem were to prove a real one, then the difference between the present regulations and those imposing criminal liability might itself also require a different approach to the issue of enforceability if it arose in the latter context.

23- I am also unimpressed by the submission that regulation 18 militates against or prevents a conclusion that, in the absence of a choice by British Airways, the employment tribunal can make its own assessment of "an average over a reference period which is judged to be representative". Regulation 18 provides:

18.—(1) A crew member may present a complaint to an employment tribunal that his employer has refused to permit him to exercise any right he has under regulation 4, 5(1), (4), 7(1) or 7(2)(b).
(2) An employment tribunal shall not consider a complaint under this regulation unless it is presented—
(a) before the end of the period of three months beginning with the date on which it is alleged—
(i) that the exercise of the right should have been permitted (or in the case of a rest period or annual leave extending over more than one day, the date on which it should have been permitted to begin), or
(ii) the payment under regulation 4(2)(b) should have been made;
as the case may be; or
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.
(3) Where an employment tribunal finds a complaint under regulation 4, 5(1), (4), 7(1) or 7(2)(b) well-founded, the tribunal—
(a) shall make a declaration to that effect; and
(b) may make an award of compensation to be paid by the employer to the crew member.
(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to—
(a) the employer's default in refusing to permit the crew member to exercise his right; and
(b) any loss sustained by the crew member which is attributable to the matters complained of."

24- British Airways' submission is that regulation 18(1) only contemplates complaints based on a refusal to permit an employee to take paid annual leave, not complaints about the level of payment for such leave. The only reference to a complaint based on failure to make a payment is in regulation 18(2)(a)(ii). There it is linked to a failure on termination of employment to make a payment in lieu of leave under regulation 4(2)(b), and that is a payment which is based necessarily on an assessment of what the employee would have earned during a defined period. British Airways contrasts this position with that under certain other regulations, such as the Working Time Regulations 1998. Regulation 16 of the Working Time Regulations entitles a worker to be paid at the rate of a week's pay in respect of each week of the annual leave required under regulation 13 and regulation 30 (Remedies) goes on specifically to deal in regulation 30(1)(a)(i) with refusal to permit a worker to exercise any right he has under regulation 13, and in regulation 30(1)(b) with failure "to pay him the whole or any part of any amount due to him under regulation …. 16(1)", while regulation 30(5) provides that, where an employment tribunal finds such a failure, "it shall order the employer to pay to the worker the amount which it finds to be due to him".

25- It is true that the Aviation Regulations, unlike the Working Time Regulations, do not explicitly address complaints relating to the payments for annual leave. But it is our duty to read the domestic Regulations so far as possible to give effect to the Aviation Directive, as interpreted by the Court of Justice. Regulation 18(1) contemplates complaints where an employer has refused to permit the exercise of any right that an employee has under regulation 4. Regulation 18(4) enables an employment tribunal to award such compensation as it "considers just and equitable in all the circumstances having regard to … the employers' default in refusing to permit the crew member to exercise his right". The concept of refusal to permit the exercise of a right can extend to cover refusal to permit the crew member an appropriate payment as part of the right to paid annual leave. The employment tribunal can on the like basis make such award as it considers just and equitable to compensate for such refusal.

26- The implication of British Airways' present submissions is that any complaint that a pilot might have can and would lie not against British Airways, but at most against the United Kingdom, for failure to implement the Aviation Directive effectively at the domestic level. I note that this would itself involve the pilot invoking a forum, presumably a court, which would then have to determine as against the State the appropriate parameters of a period judged to be representative of the pilot's normal pay – the very exercise that British Airways submits is so uncertain that it cannot be undertaken by the employment tribunal.

27- For the reasons I have given, I do not accept British Airways' submissions, and conclude accordingly that the claims should be remitted to the Employment Tribunal for further consideration of the appropriate payments to be made to the pilots in respect of the periods of paid annual leave in issue.

28- The appellants submit that the Supreme Court can and should without more conclude that the pilots' remuneration includes 18% of the sums paid by way of TAFB. But the 18% is no more than the percentage which Her Majesty's Revenue and Customs regards as taxable. The Revenue's attitude for tax purposes is presently irrelevant. It amounts at best to a third party's view on an issue to be determined independently by the employment tribunal. Even if the Revenue's attitude for tax purposes were relevant, it is not in any event clear on what basis the Revenue arrived at its attitude, or by reference to what considerations.

29- In contrast, British Airways relies upon the test stated by the Court of Justice in its para 25, which excludes from remuneration relevant to the calculation of holiday pay, components of pay "which are intended exclusively to cover … costs". British Airways stresses the word "intended". Within such components, the Court of Justice expressly included "costs connected with the time that pilots have to spend away from base". The question arising is therefore whether the payments by way of TAFB were "intended exclusively to cover … costs". Although British Airways submits that the Supreme Court can or should itself determine the answer to this question, we do not have the material to do so in the agreed statement of facts or elsewhere. Even the history of TAFB given by British Airways as summarised in para 5 above is no more than its statement of the position. It must be for the employment tribunal to consider and determine upon what basis TAFB was agreed and paid during any relevant period.

30- As to the precise test, the concept "intended exclusively to cover … costs" requires attention to be focused on the real basis on which the TAFB payments were made. If they were payments that were made genuinely and exclusively to cover costs, that would, at least prima facie, be the end of the matter. The appellants' case appears to be that, although they were designated as being for the exclusive purpose of covering costs, they were in fact more than some or all pilots might actually need for or spend on costs, and that the Revenue has, in effect, seen through the description to a reality which the Supreme Court, or an employment tribunal, should also recognise.

31- As Mr Jeans QC for British Airways accepted, there could no doubt come a point at which it was obvious that payments nominally made to cover costs were not required, or were not going to be required, in their entirety, to match actual costs. An employer who in such circumstances continued to make such payments in their full amount could then no longer maintain that they were genuinely and exclusively intended to cover costs. But, in using the phrase "intended exclusively to cover … costs", it does not appear that the Court of Justice contemplated any detailed evaluation of the precise need for or reasonableness of payments which were so intended. What matters is whether there was a genuine intention in agreeing and making such payments that they should go exclusively to cover costs. It is on that the employment tribunal should in my opinion focus.

32-On this basis, I would also remit the issues relating to TAFB to the employment tribunal, together with those relating to paid annual leave to which para 27 above refers.

Protest in Turkey: "It is feared a violent reaction"

Kader Kadem | 06:26 | 0 Comments
SonneInKreuzberg: This situation does the risk of escalation and explosion of Turkish civil society?
In a chat with readers of, Elise Massicard, the French Institute of Anatolian Studies in Istanbul, analyzes the consequences of the events in Turkey.

Borzu Why Erdogan denies he heard the protesters? He treats them as "scum" and seems to ignore what they have to say!

Until now, Erdogan has not listened to the claims raised in the dispute. He had already done so before in other cases. In addition, there are few institutionalized in Turkey that can make these claims hear channels.

Erdogan delegitimize the claims calling people mobilized manipulated by interest groups, foreign forces, or by calling them "vandals" groups.

From his stance, he wants to give the impression of a statesman who knows where it goes and who does not intend to give in to pressure it considers marginal. And mode of action of political protesters, with occupation of public places, yet prohibited allows Erdogan to delegitimize a little more.

Since he was elected with an overwhelming majority, he sees himself as the democratic representation of citizens. Therefore, he did not listen to the claims expressed by non-legally qualified marginal groups that, despite the magnitude of the events.

SonneIn Kreuzberg: This situation does the risk of escalation and explosion of Turkish civil society?

The situation is tense, and trends observed in the polarization. Two points: what's new in the movement that is expressed is that it brings a lot of opinions, different currents: Kemalists (supporters of the authoritarian and strictly secular Republic founded by Mustafa Kemal), the more organizations to the left, pure nationalists, feminists, even Muslims anticapitalist ...

It should be added that many people do not recognize themselves in a particular group, which are quite liberal opinion. But today, there is risk of bursting of the coalition, which is pretty unlikely.

Second point: there is a polarization between those who were mobilized and supported these mobilizations and supporters of the AKP, the ruling party. Polarization with mutual incomprehension because the mainstream media have also déligitimé mobilization, with the risk we've seen in some places clashes between civilians. For example, last Thursday, in a city of the region of the Black Sea, Rize, demonstrators supporting the cause of Gezi sea were attacked by activists of the AKP. Moreover, sporadically in some areas, we have mobilized clashes between groups and against-demonstrations.

TomEkin: Should we fear violent clashes between supporters of the AKP and protesters during rallies under the AKP this weekend?

It is not impossible at all. You should know that currently, we are debating whether to delay these rallies because the tension is palpable. And we have events in cities across the country continue, which are more or less suppressed by location. It is possible that violent clashes occur during these gatherings, or in conjunction with them.

Moks: Do you think that the media exaggerate a little challenge? For proof, no media to tell the tranquility of the place today ...

The mainstream media in Turkey have very little relayed mobilizations and were widely criticized by protesters for it.

Guest: Demonstrations are they really representative of the whole of the Turkish population?

They gave the image of a violent protest. Part of Turkish society is not aware of the magnitude of the challenge. For their part, have mobilized massive appeal to the international media and social networks. The information is also an issue of conflict. In particular, the demonstrations taking place outside of Istanbul are very poorly covered and relayed, both in Turkey and abroad.

Nahas: The Erdogan authority can be challenged within the AKP?

Several officials of the AKP government adopted more conciliatory positions as Erdogan, especially while he was on a diplomatic trip abroad last week. It is difficult to know if it is a division of roles internally or real dissonance. Since the return of Erdogan, his closest advisors reaffirmed their cohesion around it.

David: President Gul seems to take the floor against Erdogan calling for dialogue and calm ...

The differences in approach between Erdogan and Gul are not new. In several cases, when Erdogan adopted a firm attitude, President Gül had a less clear-cut attitude. But several times since the coming to power of the AKP, in times of crisis in particular, the two men agreed and allocated roles.

At the level of discourse and style, Gul, actually, has a conciliatory position. But that did not prevent the enactment last Monday, the impugned legislation which regulates the sale of alcohol. So, the stock level, we do not see real dissonance.

Ersin: The fall of the government is feasible?

One of the slogans chanted during demonstrations and rallies is a call for the resignation of the government. However, this seems unlikely, given that he has not made any concessions so far.

Another hypothesis is that early elections. To date, it also seems unlikely. If elections were held soon, the AKP probably would win. The opposition parties do not have to present sufficient voting power to change the political balance.

Claudio Marraccini: I come from a family of Levantine living in Izmir for over four centuries. Why do European countries and the United States do not condemn most firmly drifts Erdogan that affect individual freedoms?

International pressure is sustained for several days, either side of the leaders of the European Union, the United States and several European countries. On the one hand, critics are bright, especially on police repression of protests. However, different countries may fear the risk of political destabilization in a very complex international environment already, especially in Syria. This was after a meeting with EU officials Erdogan adopted a more moderate discourse, for a time.

The economic dimension is also important. The Istanbul Stock Exchange fell sharply in recent days, and losses in economic terms, in tourism and others are consistent. The government intends to restore the image of Turkey in restoring order.

Alex: What is the position of the military vis-à-vis the islamistion the country army is supposed to be the guarantor of secularism?

The army is largely absent events. No statement was made. In the current state of forces, a military intervention seems unlikely.

Pierre C: Who in the opposition could bring all these ways and form a real opposition to Erdogan?

The BDP, Kurdish nationalist party, is not involved in the demonstrations. It is engaged in the process of settlement of the Kurdish issue in progress, and does not wish to oppose the government.

The Kemalist party, while supporting the mobilization is divided internally between a liberal group and a Turkish nationalist group, and just to capitalize on the protest. For now, the challenge of the last days does not seem to lead to a reconfiguration of the opposition supporter level. It is unclear how the dissatisfaction and demands that were expressed can be relayed in the partisan arena.

KZ: Yesterday demonstrators to express their support to the protesters lawyers were arrested in a completely illegal. One more example of the authoritarian Prime Minister ...

Dozens of lawyers were arrested yesterday in the courthouse, on the grounds they chanted slogans in a public building. They were remanded in custody, and then released. Today, hundreds of lawyers protested against these actions in Istanbul and Ankara.

Lakrymo: Is Erdogan's strategy, which is to finally get a part of the population against another, can work?

Supports Erdogan, in terms of numbers, are more important. On this popular base that relies to assert its leadership and firmness. On several occasions, he said that the minority can not, in a democracy, to impose its will on the majority.

Taf: There is much talk of a "Turkish Spring" in reference to the Arab Spring. But would not you rather see a link between these events and in May 1968 in France?

You can see the similarities: the role of youth in the context of a long-established power, a dispute about the lifestyles, the starting tight enough to claim that expand to demands for more freedoms. All in a more favorable economic environment.

Police disperse protesters gathered in Taksim

Kader Kadem | 06:09 | 0 Comments
protesters occupied the Gezi Istanbul Park, two hours after a new ultimatum Turkish Prime Minister Recep Tayyip Erdogan
Turkish police evacuated Saturday, June 15 in the evening thousands of protesters occupied the Gezi Istanbul Park, two hours after a new ultimatum Turkish Prime Minister Recep Tayyip Erdogan ordering them vacate.

The police entered the park, the bastion of anti-government revolt that shakes Turkey for two weeks, and emptied of all its occupants by firing tear gas grenade. Many tents in which occupants were preparing to spend another night were destroyed during the operation, and arrested several protesters.

Shortly before, the police had evacuated, first with water cannons and tear gas with several protesters who had gathered in Taksim Square, chanting hostile slogans Erdogan. In a speech near Ankara to tens of thousands of his supporters, the prime minister launched in late afternoon a new ultimatum to the occupants of the park, requiring him to vacate the premises by Sunday.

"Stay there has no meaning because the case is now in the hands of justice [...]. I do not know what will be the decision of the court but to slice or against [the maintenance of the park ] there will be a popular vote in Istanbul [...] and we will respect the outcome of the vote, "had said the Prime Minister in particular.

"If brothers are still there, please leave because the park belongs to the people of Istanbul. This is not a busy area for illegal organizations," insisted the head of government. "Nobody can intimidate us, [...] we do not take order or instruction from anyone except God," he shouted to the demonstrators.

On May 31, a violent police intervention in Gezi Park to evacuate opposed to its destruction announced militants escalated into widespread movement of political protest against the Turkish Islamic-conservative government in power in Turkey since 2002.

MEPs say: Expression and media must be free

Kader Kadem | 03:54 | 0 Comments
MEPs are deeply concerned at the disproportionate and excessive use of force by Turkish police to break up peaceful and legitimate protests in Istanbul's Gezi Park
MEPs are deeply concerned at the disproportionate and excessive use of force by Turkish police to break up peaceful and legitimate protests in Istanbul's Gezi Park. In a resolution voted by a show of hands on Thursday 13 June, they warn against the use of harsh measures against peaceful protesters and said prime minister Recep Tayyip Erdogan must take a unifying and conciliatory position.

Those responsible for the police violence must be brought to justice, detained peaceful protestors immediately released and the victims compensated, MEPs say. While welcoming the moderate response to the protests by president Abdullah Gül and apologies by deputy prime minister Bulent Arinc, they deplore the unwillingness of the Turkish government and Mr Erdogan to take steps towards reconciliation, to apologise and to understand the reactions of a segment of the Turkish population.

Inclusive society
The protesters increasingly feel that minority voices lack representation and parts of the Turkish population are dissatisfied with the recent lifestyle regulation, MEPs say. They stress that in an inclusive, pluralistic democracy, the majority has a responsibility to include opposition and civil society in the decision-making process.

The holding of peaceful and legitimate protests in itself testifies to the vibrancy of Turkish civil society but Turkey must further improve its democratic institutions, the rule of law and the observance of fundamental freedoms, MEPs say.

Expression and media must be free
MEPs are also concerned about the deterioration in press freedom, including acts of censorship and growing self-censorship within the Turkish media. Mainstream Turkish media remained silent about the demonstrations and Twitter users were arrested, MEPs note. They stress the importance of an independent press for a democratic society and the role of the judiciary in enhancing press freedom, citing the high number of journalists in prison and on trial.

Eroglu: Annan Plant; Varosha is part of a comprehensive

Kader Kadem | 06:21 | 0 Comments
ECHR, ECOHR, Turkish Cypriot daily Star Kibris newspaper Turkish Cypriot daily Star Kibris newspaper (06.06.13) reports that Turkish Cypriot leader Dervis Eroglu has argued that the Annan Plan was not a solution plan for Cyprus and that in the contrary it was a plan which would create unrest. Replying to the questions of Akademi Politik magazine, Eroglu argued that the important thing right now is what has been discussed with the Greek Cypriot side during the ongoing process since 2008.

He noted: "The fundamental issue we put emphasis on is to make an agreement having as starting point the existing realities in Cyprus. Otherwise new areas of conflict will come up and what you call agreement will be returned into a document which creates the ground for conflict".

Replying to a question on the Annan Plan, Eroglu alleged: "The Annan Plan belongs to the past. Of course, it is possible to be benefited from all the documents prepared until today, from all the framework agreements. However, as it is written in the Annan Plan itself, it has ceased to exist because it was rejected by one of the sides in the referendum. In spite of the fact that the current President of the Greek Cypriot Administration Nikos Anastasiades had carried out a 'yes' campaign during the referendum process for the Annan Plan in 2004, now he is in a position of being the main opponent of the Annan Plan. The National Unity Party under my leadership in 2004, had carried out a campaign for the 'no' vote. In my view, the Annan Plan is not a solution plan. On the contrary, it was a plan that would create unrest".

Eroglu alleged that two "states" exist now in Cyprus, even though the "TRNC", breakaway regime in the occupied area of Cyprus, is recognized only by Turkey and claimed: "No one can change this reality. Two states are living side by side at the moment. We will see. I repeat: A solution is possible having as starting point the existing realities in Cyprus".

Asked to comment on the proposal as regards the return of the occupied fenced city of Varosha to its legal Greek Cypriot owners and the opening of the occupied Famagusta port under the auspices of the EU, Eroglu alleged:

"The issue of Varosha has come many times onto the agenda in the one way or the other, but at the moment for us it is an issue that should be included in the comprehensive solution. The view put forward by motherland Turkey on the issue of the opening of the ports is the lifting of the embargo imposed by the Greek Cypriots for a port in the TRNC in return for the opening of a port in Turkey for the Greek Cypriot side. If they come to this point, it will happen, if not, no conclusion could be reached".
Support : Copyright © 2011. European Court of Human Rights - All Rights Reserved
Template Modify by Website
Proudly powered by Blogger