Back in late January, I posed a question directly to Mr. Jean-Paul Costa, the president of the European Court of Human Rights, asking whether he thinks Turkey needs a complete overhaul of its justice system to overcome deficiencies. He was “incrementalist” in his response, saying: “You can gradually harmonize laws. It takes time. When you become a member of the Council of Europe, when you sign the convention, you need to gradually harmonize national laws.”
Many people in Turkey, including the writer of this column, believe Turkey should adopt a radical approach and have a comprehensive restructuring of the Constitution as well as a complete overhaul in the way the justice system operates. But for now, it looks like the Turkish government seems to have sided with Mr. Costa by introducing a small constitutional reform package last week.
Well, at least, it is something we can work with. We can take relief in a belief that Turks are finally chipping real chunks away from the archaic Constitution force-fed by the military after the 1980 coup d’etat. The good news for Mr. Costa is that the restructuring in the high judiciary and introduction of individual complaints to the Constitutional Court as well as establishing an office for ombudsmanship will certainly help decrease the workload that originates from Turkey for the European court.
To put things in perspective, let’s recall what the court, Europe’s top judicial body ruling on human rights violations, said in the last report, issued in January 2010. The court found that Turkey is by far the worst violator of human rights among the 47 signatory states of the European Convention on Human Rights. In statistical data on violation judgments by country for the period between 1959 and 2009, Turkey topped the chart with 18.81 percent of all violation judgments, followed by Italy with 16.57 percent and Russia with 6.34 percent.
In 2009 alone, Turkey topped the list in terms of violations of articles of the European Convention on Human Rights. In a tally of the number of judgments entered for Turkey, 356 cases out of a total of 1,625 put the country in the worst violator class. In only nine cases out of the 356 did the court find there was no violation, while stating that at least one violation occurred in the rest of the cases. Russia followed Turkey in 2009 with 210 judgments against it.
In terms of pending applications as of Jan. 1, 2010, the report found that Turkey has the second-highest number of complaints lodged against it with 11 percent of the total 119,300 applications. Russia led the pack in this category with 28.1 percent of the applications. In its report, the court described Turkey as a “high case-count state.”
Therefore, the proposal to allow individual complaints to be submitted to the Constitutional Court after all domestic remedies were exhausted will likely help reduce cases that go to the European court and should be applauded. I really do not understand why the opposition stands in the way of this change. Aren’t they ashamed of being labeled the worst violator of human rights in Europe? As a citizen of Turkey, I am, and honestly, I believe I deserve much better.
When I talked to Thomas Markert, the secretary of the Council of Europe’s Venice Commission, last week, he reminded me about the 2004 commission opinion on a similar draft and said: “We welcome this [introduction of the right to individual complaint] very much. The experience of other countries shows that this is a good means of increasing the confidence of the people in the court system and that it can contribute to the democratization of society.”
Giving a comparable example to make his case, Markert said: “The role played by the German Constitutional Court since the 1950s is a good example in this respect. It should also make it possible for decisions to be made in Turkey in many cases which currently go to the Strasbourg court.”
If Turks start to believe justice is being served in Turkey and that their complaints are heard freely and fairly, then maybe we would see a reversal in the increasing trend in the number of cases that end up in the European court. The structural changes offered for the Constitutional Court in the recent package align well with the introduction of individual complaints. Not only will the number of justices be increased to handle the workload, but also the court will be divided into three chambers, each designed to handle specific areas. It also envisages a filtering mechanism including sub-commissions to examine the validity of complaints before sending them to the relevant chamber.
What is more, the Supreme Board of Judges and Prosecutors (HSYK) will be revamped to reflect broader representation from the judiciary. With a more democratic and pluralistic structure in the composition of its membership, HSYK decisions on promotion and disciplinary actions, a source of criticism for a long time in Turkey, will be open to judicial review. We all know how the HSYK decisions in the past were influenced by politics and the military. Under pressure, the board abruptly took judges and prosecutors off of landmark cases without offering any reasoned decisions. Because there was no appellate process for HSYK decisions, some of these cases went to the European court.
If you talk to any human rights advocate in Turkey, they would immediately say the incompetence of the Turkish judicial system in meting out justice has left citizens with no option other than the European court. Ahmet Faruk Ünsal, president of the Association of Human Rights and Solidarity for Oppressed Peoples (MAZLUM-DER), puts the blame for this lack of judicial recourse on the HSYK. He argues that the board exerts undue pressure on judges, who are stripped of judicial guarantee. It is simply not possible to conduct an impartial trial while your promotion and disciplinary proceedings are handled by the HSYK, whose decisions are not open to judicial review, he argues.
From the polls we have seen so far, the public seems to overwhelmingly support the proposed changes tabled by the government. That is why select members in the high judiciary who long resisted calls for more accountability and better transparency are now campaigning passionately and lobbying hard to prevent these changes from turning into reality. I wonder where they think they get the legitimacy.