The Case of the Eight Turkish Military Personnel who Sought Asylum in Greece after the Failed 2016 Coup in Turkey: Fair Trial as a Reason Precluding Non-Refoulement and (Stricto Sensu) Proportionality

Abstract

The paper is devoted to Stavros Tsakyrakis and uses a case - in which he was involved - as a case study allowing to advance two sets of key arguments concerning the power of Article 6 ECHR to bar refoulement. The case study concerns the extradition of eight Turkish military personnel who sought asylum in Greece in the wake of the failed military coup in Turkey, in July 2016. As far as the first set of arguments is concerned, the ECtHR has established that Article 6 can effectively prohibit extradition where the applicant risks facing, if returned to the requesting state, a ‘flagrant denial of justice’. The paper argues that, although the Greek courts did not properly engage in the aforementioned case of the eight Turkish servicemen with the relevant ECtHR case law, they ultimately reached the correct decision when they barred refoulement on the basis of Article 6. As to the second set of arguments, the starting point is that non-refoulement comes at a cost (diplomatic, economic etc.) for the host state. This cost is the reason why only a limited number of human rights, i.e. rights that have a special moral weight, have been viewed by the ECtHR as generating non-refoulement effects. In that respect, the paper discusses the absolute prohibition contained in Article 3 and the morally weighty -but not absolute- right enshrined in Article 2 as reasons precluding refoulement, and juxtaposes these two ECHR Articles to Article 6. In respect to Article 6 ECHR, the paper notes that, according to the ECtHR, not any denial of justice may block non-refoulement; a quality threshold applies, according to which a denial must be ‘flagrant’. Moreover, the paper argues that, to duly assess when claims under Article 6 should prohibit refoulement, one should counterbalance the (associated with interests and human rights) cost of non-refoulement against a further criterion. Outside of the traditional factors a court must take into account to determine whether flagrant breaches of Article 6 may occur in the receiving state, it should also examine the object of legal proceedings overseas, i.e. what interests and rights proceedings concern and the importance thereof. This requires balancing through stricto sensu proportionality as a means to prioritise -within the context of the special set of facts of a particular case- the rights that are morally weightier.