TURKEY'S NEXT ECHR JUDGE DISCUSSES HEADSCARF,

C O N F I D E N T I A L SECTION 01 OF 02 ISTANBUL 000067 SIPDIS SIPDIS E.O. 12958: DECL: 02/06/2018 TAGS: PHUM PGOV KIRF TU SUBJECT: TURKEY'S NEXT ECHR JUDGE DISCUSSES HEADSCARF, ARTICLE 301 REF: A. ISTANBUL 0040 ¶B. ANKARA 0171 ¶C. 07 ISTANBUL 1088 ¶D. ANKARA 0059 Classified By: Consul General Sharon A. Wiener for reasons 1.4 (b) and (d) ¶1. (C) Summary and comment. Turkey's newly-elected European Court of Human Rights (ECHR) judge Professor Isil Karakas stressed to us the importance of precedent in juridical analysis of the controversial headscarf issue, now approaching full boil in public debates. She expected proposed Constitutional amendments allowing headscarves in universities to go forward and that secularist challenges would immediately follow in domestic courts, perhaps ultimately landing in her future ECHR jurisdiction. Citing freedom of expression as among the most important of human rights, Karakas lamented the headscarf debate had overshadowed the more critical Article 301 reform that had been slated as a legislative priority earlier this year. Despite the controversial circumstances that led to her nomination, Karakas seems well equipped to represent her country at the ECHR as a progressive judge with a pragmatic respect for common European values and rule of law over ideology. End summary and comment. ¶2. (C) During a January 31 meeting, Professor Isil Karakas discussed with us her January 22 appointment as the next Turkish judge at the ECHR (ref A) and shared her views on domestic human rights issues. She expressed pride in the fact that when she takes up her responsibilities on May 1, she will be one of only 16 female judges (out of 47 total) on the ECHR bench, and the first female judge from Turkey at a European court. Karakas described the selection process, admitting she had presented herself as a candidate to the Prime Ministry and the Ministry of Foreign Affairs after the Council of Europe Parliamentary Assembly rejected the GOT's first list because it did not deem two of the three proposed candidates qualified. Noting the Council had encouraged the GOT to consider "diversity" when nominating candidates, Karakas stated the government seemed relieved when she presented her CV because it was having a difficult time identifying women with the right background and expertise. The GOT presented her name as the second of three candidates after subjecting her to a short interview in December 2007, which she said consisted of the Prime Ministry's Undersecretary (a former student of hers) asking what contributions she would bring to the Court. ¶3. (C) Turning to the divisive headscarf issue which has recently monopolized media and government attention (ref B), Karakas expected proposed Constitutional amendments permitting headscarves in universities to be challenged in one of two ways. The secular opposition could contest the amendments in the Constitutional Court, a likely futile strategy, she opined, since the Court is not technically permitted to consider the substance of the amendments but rather only the process by which they were incorporated. More likely, Karakas believed the amendments would be adopted and subsequently challenged through a series of court cases prompted by female university students who don't wear headscarves claiming societal pressure to wear the headscarf infringes on their liberties. Decisions in these cases would be appealed to the Council of State (Danistay) or the Constitutional Court, at which point existing secularity principals defined in the Constitution could arguably be used to revoke the headscarf wearing rights granted by the amendments. ¶4. (C) If such appeals were unsuccessful in domestic courts, Karakas speculated the issue could very well end up in her jurisdiction at the ECHR. She noted the Strasbourg-based court had ruled on the issue in 2004 and that even though circumstances were different in that case - the Court ruled Turkey's headscarf ban was not unlawful - it would have to be considered in any subsequent rulings on the legality of headscarf rights in universities. Without explicitly expressing her personal opinion on the headscarf ban, Karakas asserted juridical precedent was key to analyzing the legality of the proposed Constitutional amendments. A series of decisions in domestic courts, at the ECHR and by the European Commission applied the secularity principal to defend headscarf bans in universities and on national identification cards. Moreover, the ECHR values secularity as a founding principal, Karakas observed. ¶5. (C) Responding to an inquiry concerning Turkey's likely ISTANBUL 00000067 002 OF 002 reaction to a recent ECHR decision in favor of an Alevi father who argued his daughter should be exempt from mandatory religious courses (ref C),Karakas anticipated Turkey would incorporate more information on Alevi beliefs in primary and secondary school curriculums. She noted a committee of ministers is responsible for an annual assessment of compliance concerning the ECHR's decisions. If the committee determines Turkey's religious course curriculum does not satisfy the terms of the ruling, the GOT would have to take further action to comply or face sanctions. Karakas explained that similar circumstances had led to the abolition of security courts in Turkey after the ECHR committee determined a 1999 Constitutional amendment did not satisfy the terms of a previous ECHR ruling that declared the security courts illegal. ¶6. (C) Asked what human rights issues were of particular concern to her, Karakas responded, "One of the most important rights is freedom of expression." She lamented that efforts to address the headscarf issue had overshadowed the more important Turkish Penal Code Article 301 (insulting "Turkishness") reform that looked ready to move quickly through parliament in early 2008 (ref D). Karakas described the proposed changes to the Article as inadequate, noting that replacing "insulting Turkishness" with "insulting the Turkish nation" would do little to temper the subjective application of the law. She suggested that language used in similar legislation in other European countries is more effective because it focuses on insulting specific institutions. Still, she would rather see the Article abolished because, unlike their European counterparts, Turkish judges don't apply legal precedents established by other courts. "The mentality is different in Turkey," Karakas concluded. WIENER