by Eldar Mamedov
At their meeting on July 18 in Brussels, the EU foreign ministers adopted conclusions on the latest developments in Turkey. Beyond the expected condemnation of the coup attempt and exhortations for the government to show restraint toward the vanquished plotters and respect the rule of law, the document pointedly recalled that “the unequivocal rejection of the death penalty is an essential element of the Union acqui.” In other words, a country that practices the death penalty cannot join the EU.
The language was obviously included as a reaction to the musings of Turkish Prime Minister Binali Yildirim about the possible reinstatement of the death penalty—to be applied against the coup plotters. German Chancellor Angela Merkel also said earlier that the re-introduction of the death penalty would spell the end of Turkey’s EU accession negotiations.
Ankara’s reaction revealed the dramatic loss of EU leverage over a country that is still technically a candidate to join it. The same day the EU ministers were issuing their warning, Turkish President Recep Tayyip Erdogan declared in an interview with CNN that he would approve the death penalty if the Turkish parliament would decide so.
International, Political, and Legal Implications
If Turkey were to go through with reinstating the death penalty, accession negotiations with the EU would be suspended. Also, the European Parliament (EP) would certainly not consent to the visa-free regime with Turkey that was part of a deal that the previous prime minister Ahmet Davutoglu negotiated with the EU in exchange for Turkey’s cooperation in stemming the flow of the Syrian refugees to Europe. The deal was already in trouble when the EP decided earlier that it wouldn’t even consider the visa-free travel before Turkey liberalizes its notoriously repressive anti-terror laws—which was one of the key criteria for the visa liberalization process. But the re-introduction of the death penalty is a transgression on a much higher level than harsh anti-terror laws.
The consequences for Turkey’s relations with Europe would not stop there. As a party to the European Convention on Human Rights (ECHR), Turkey ratified in 2006 Protocol 13 of the convention, which provides for a total abolition of the death penalty. In the legal hierarchy, international conventions, into which states enter voluntarily, take precedence over domestic law. To restore the death penalty requires more than just a vote by the Turkish parliament and the signature of the president. Ankara would either need to denounce Protocol 13, which it can do while still remaining a part of the ECHR, or apply the death penalty without denouncing that protocol. In the latter case, any member state of the Council of Europe can refer Turkey to the European Court of Human Rights. The court will rule against Ankara, and since Turkey is a member of the Council of Europe, its decisions are binding for Turkey.
Furthermore, Article 7 of the ECHR effectively rules out the retrospective application of punishment. It states that no heavier penalty shall be imposed against anyone than the one applied at the time the criminal offense was committed. That means that the execution of the July 15 coup plotters, even if Turkey reinstates death penalty in a legal way, would still be illegal. At most, it could only serve as a deterrent for future would-be plotters.
Whichever path Turkey chooses, bringing back death penalty will come at a heavy price for the country’s reputation. There are only two members of the Council of Europe that have still not ratified Protocol 13, Russia and Azerbaijan, and even they don´t apply death penalty.
Erdogan’s Cost-Benefit Analysis
At the moment Erdogan, ever an astute populist, may be prepared to pay this price. In a frenzied post-coup atmosphere, he knows that this would probably prove to be popular among his voters. Moreover, the pro-Erdogan anti-coup coalition included violent mobs of extreme Islamists and “osmanized” Turkish fascists (the Grey Wolves), who unleashed savage violence on defeated soldiers and rampaged through Alevi and secular neighborhoods in the Turkish cities. They also targeted alleged followers of Fethullah Gulen, a US-based cleric whom Erdogan holds responsible for the coup attempt. Once Erdogan released the hidden beasts of the Turkish society, it will be difficult for him to push them back into their dark holes. He may well pay the price for a re-introduction of the death penalty in order to appease this constituency.
As to the possible EU reaction, Erdogan may feel he has already gotten all he wanted from the EU: six billion euros to keep the Syrian refugees away from Europe and unlimited possibilities to blackmail the EU whenever this suits his agenda. Accelerating accession negotiations and obtaining visa-free travel are freighted with conditions, and the costs of fulfilling them currently outweigh the benefits for Erdogan.
The reservations Erdogan might have regarding the re-introduction of the death penalty are more likely to do with domestic political considerations than the EU position. For instance, could such a penalty be applied to him and his cronies for the power abuse, corruption, repression, oil trade with the Islamic State, and arms deliveries to terrorist organizations in Syria if and when he is pushed out of power?
Also, such a step would inevitably raise the case of Abdullah Ocalan, the jailed leader of the Kurdistan Workers’ Party (PKK) who was sentenced to death in 1999. This sentence was later commuted to life in prison as part of Turkey’s effort to align with the EU criteria. The execution of Ocalan could well be the price the far right Nationalist Movement Party (MHP) could demand for supporting the re-introduction of the death penalty in the Turkish parliament, where its support would be crucial in getting the qualified majority needed for such a step . Despite his current war in the Kurdish areas, Erdogan might want to think twice before executing Ocalan, given his popularity among Turkish Kurds and the likely violent reaction it would spark.
Whatever the case, throughout his career Erdogan has proven to be a serial risk-taker, and mostly his gambles paid off. The re-introduction of the death penalty would be a grievous mistake with devastating consequences for Turkey’s relations with Europe. It is not yet a foregone conclusion, but it is certainly a possibility.
This article reflects the personal views of the author and not necessarily the opinions of the European Parliament.