Close encounters of an institutional kind
1994-2004
Sedef Cankocak
These witness hearings were held in cases where the Court was confronted with conflicting facts. They occurred when the complaint involved two contradictory points of view, two sides of an argument, that of the applicant and that of the member State (this is not an ordinary situation; in most cases before the Court the facts are not disputed). Cases requiring a hearing emerged from countries in conflict, where the situation was such that individual citizens were condemned to great suffering and justice was a rare commodity. What usually happened was that a team of three judges of the Court travelled to the place concerned and heard first hand testimonies from witnesses who had been proposed by the applicants and the government and who were speaking under oath. The judges would then try to find some order in the seeming contradictions and ascertain the facts of the case.
From 1994 to 2004, I had the privilege of accompanying the judges and lawyers of the Court on these various missions, in order to ensure the logistics of some twenty or so such cases. Many of the hearings took place in very difficult locations, such as a prison in quasi-inaccessible Transdniestria, for example, or a bullet-ridden building in Cizre, and many a cold and cavernous Hall of Justice in other capitals, where we would have to leave the building in the evening through backdoors (or sometimes, to our delight, through doors marked “flagrante delicto entrance”).
I should qualify that I was hardly a spring chicken at that time; I was not just one more bright young thing, excited about being an international civil servant in a prestigious organisation such as the CoE, who was experiencing politically or physically precarious conditions for the first time in my life. I was already in my thirties and as a Turkish citizen, I had seen my fair share of military coups and their gory aftermaths. Even so, during these witness hearings where the judges would question the applicants and cross-examine the government officials in the time-honoured Anglo-Saxon tradition, I came to realise how far apart our worlds were and the reality of that distance had a strong emotional impact on me.
Most of these people had either been victims themselves, of humiliation, of violence, and of loss of family, or had witnessed these forms of cruelty and injustice as lawyers. Some of them had perhaps been among the forces that had engaging in killing and torturing or defended those who had killed and tortured others. They had felt fear; they had succumbed to hate; they had experienced pain and grief. They had risked lives, whether their own or those of others, willingly or not.
We were strangers coming to these places from Strasbourg but we held the high moral ground; we were there to bring truth to light if possible, to give the victims an opportunity of redress and closure, and to show sympathy or empathy when we could. We had the authority of the Court behind us, making demands on governments on their own turf which they grudgingly gave - or sometimes refused to give. On the other hand, it has to be admitted that we were doing a job that we were being paid for - and paid well. This being said, I feel that I was fortunate to be in the company of some judges and registry staff who put their brilliant minds and human decency to use in order to make a difference in these often difficult circumstances.
In the collision of these disparate worlds, there were the inevitable funny moments. There were times when the bad translation of a sentence would come across sounding like a line from a stand-up comedy. There were tense moments when a government official threatened a witness outside the hearing room, which required one to run into the melee in order to stop it from getting any worse. There were also emotional times, when visiting the venue of a tragedy where a whole family had been killed by a ricocheting rocket leaving a father of seven in misery. There were even some tender moments when one had to run to a pharmacy to get a pacifier to silence a breastfeeding baby waiting for her mother to finish her testimony. There were even moments of rebellion on the part of an honourable judge who, faced with a witness who condemned people with tattoos as subhuman savages, responded by painting nice red tattoos on his arms with a felt pen for everyone to see.
There were moments of profound uneasiness too, when we had to sit in a prison hearing room in Transdniestria - a makeshift place created by transforming a prison hall with whatever material was at hand - in which a prisoner applicant was made to sit in a cage and was questioned from behind bars. A request from the judges managed to get the handcuffs removed, but the cage was not negotiable. There were men of power there in those hearings, and they made all of us feel it. Power was an abstract concept or a feeling for some of us but it could be a tangible world of pain for others. And it was better not to be at the receiving end if one could help it.
There were also moments during which one had to question one’s self, moments of ethical self-analysis. One such for example, took place in a remote town on the Syrian border, over dinner, as I remember. The question arose as to whether CoE representatives should be seen speaking to a uniformed soldier stationed in front his armoured vehicle while the village children - for whom that soldier is the symbol of destruction - looked on as witnesses. We had asked the solder in question for specific information on the type of vehicle he was driving, as its identification had been a contention point during the hearings. But for this we were severely reprimanded by the president of the delegation. The debate raged on between us: Would our contact with the soldier be interpreted as siding with the authorities against the people in a sensitive environment (for sensitive it was, in an area where bullet holes in hotel rooms seemed to be an ordinary circumstance)? Or would it be seen as just another example of foreigners being foreigners? Was it justified as part of our quest for facts and information? Or had we violated a serious protocol? The debate ended in a draw on that day. One thing I do remember from that visit is that the local Güzelbağ wine - henceforth known as “the guzzelbag” in court circles - was delicious.
Over the years, I have asked myself questions about the utility, the moral grounds, and end results of these interventions, and above all I have questioned the safe, possibly even complacent place from which we conducted them. I have had my moments of doubt. But whenever I felt waves of cynicism descending on me, I asked myself: Is it not true that there is no justice without truth and no truth without facts? Isn’t establishing those facts through cross examination by legal professionals who are outsiders and have no stake in the fight, the safest way to reach the truth? And isn’t making these findings public in verbatim records where both sides can retell their stories, the most competent way of ensuring that facts are not buried under interpretation and perhaps covered by lies?
Looking at these fact-finding missions now, from the distance of a decade or more, at a time when we are sinking all too swiftly into the gathering darkness of an “alternative facts” era, and in the light of the rising right wing ill-feeling against the Court and all it represents, I think I have reached a more serene assessment. Although ex-post intervention of the Court could not change what happened in the past, it did have an impact on the future.
By listening to and recording as faithfully as possible the witness testimonies at these hearings, we ensured that the violations of people’s rights were recorded for future generations. I do not attribute any undue honour to us for doing this since we were wearing the mantle of the institution and not acting as individuals. Nor do I think that legal decisions are necessarily the only or the correct answer to everything. All I can do is to state, in all humility, that we were privileged to be part of this task. To have served in this capacity was sufficient unto itself.
And so I say: Long live the Court!
