Published: 01 February 2018 Author: Stefan Talmon
On 31 January 2018 the Federal Government submitted a written statement in the case of Yücel v. Turkey before the European Court of Human Rights. Deniz Yücel, a Turkish-German journalist and Turkey correspondent for the German newspaper Die Welt, was arrested in Turkey on 27 February 2017 on charges of propaganda in support of a terrorist organisation and inciting public violence, amid a large-scale crackdown on alleged supporters of a failed military coup in Turkey in July 2016. He was kept in pre-trial detention without a formal indictment being filed.
The Federal Government repeatedly called for the release of Deniz Yücel and other German nationals being detained in Turkey for what Germany considered to be “political reasons”. These detentions contributed to a sharp deterioration in relations between the two countries throughout 2017.
On 6 April 2017, Deniz Yücel submitted individual application no. 27684/17 to the European Court of Human Rights claiming a violation by Turkey of his rights under Articles 5, 10 and 18 of the European Convention on Human Rights. In July 2017, the Federal Government announced that it would submit a written statement in the case in support of Deniz Yücel’s application. On 17 July 2017, Peter Altmaier, Chancellor Angela Merkel’s chief of staff, said:
“For 155 days, Deniz Yücel has been in custody, for 140 days he has been held in solitary confinement. To this day, he has not been presented with any formal charges. This procedure in no way conforms to the rule of law. For this reason, the Federal Government will submit a statement in support of the application filed by the attorney of Deniz Yücel before the European Court of Human Rights.”
Germany based its right to submit a statement in the case on Article 36, paragraph 1, of the European Convention of Human Rights which provides that every “High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings.” This right of the State of nationality of the applicant to intervene in the proceedings was introduced into the Convention by Protocol No. 11 which only entered into force on 1 November 1998. The Federal Government had never exercised this right before. Although Germany is notified by the Registrar of any case brought by one of its nationals against another High Contracting Party, until now, the Federal Government had always declined to intervene. The only time Germany ever took up the case of one of its nationals before the European Court of Human Rights was in 1989 in the case of Soering v. United Kingdom which concerned the son of a German diplomat facing extradition to the United States of America for murder.
By accepting the written comments of the Federal Republic of Germany, the European Court of Human Rights confirmed that, in cases of dual nationality, a High Contracting Party may intervene in support of its national in an application brought against the other State of nationality. Article 36, paragraph 1, of the Convention is a vestige of the right of diplomatic protection. However, unlike the classic right to exercise diplomatic protection in case of multiple nationality, the right to intervene under the European Convention on Human Rights does not require that the nationality of the intervening State is “predominant”, both at the date of the alleged violation of the Convention and at the date of the State’s intervention in the proceedings. Otherwise, Turkey could have questioned whether Deniz Yücel, who had been living and working in Turkey at least since May 2015 without being accredited as a foreign correspondent, was in fact a predominantly German national.