Steps to align Turkey with ECtHR

Just in the nick of time, the Turkish official journal Official Gazette published Law No. 6234 on Jan. 19, 2013, ordering the establishment of a commission to review ongoing cases against Turkey at the European Court of Human Rights (ECtHR) and offer a remedy in terms of compensation to the plaintiffs in an attempt to decrease the number of cases aimed at Turkey. The move came just six days before the Strasbourg court is scheduled to announce annual statistics with regard to the signatory states of the European Convention on Human Rights (ECHR) during a press briefing on Jan. 24 at the ECtHR Human Rights Building, a short distance from Council of Europe (CoE) headquarters.

The law was submitted to the Parliament on May 2012 by the government and was approved by the Justice Commission on Nov. 9. It was later debated on the floor and approved by the General Assembly on Jan. 9, 2013. The president signed it into a law on Jan.18 and sent it to the official journal for publication. With this commission, it is hoped that Turkey’s notorious reputation as the violator of the ECHR will be improved significantly. In recent years, Turkey was number one in terms of the number of decisions handed down by the ECtHR against any member state of the CoE and number two after Russia in number of cases filed against signatory states. The picture probably will look the same when the court discloses the new data on Thursday.

The new law adds to a number of changes recently introduced to the Turkish judicial system that may significantly reduce the backlog of cases originating from Turkey in Strasbourg. The Justice Ministry’s close cooperation with the ECtHR as well as with the Venice Commission, another important institution of the CoE, has paved the way for overhauling important legal codes and constitutional articles. Law No. 6234 addresses an important structural deficiency in the Turkish justice system that the ECtHR has consistently highlighted in case law involving Turkey: the lack of effective domestic remedies to challenge violations based on the excessive length of proceedings.

The commission established by the law has five members; four will be appointed by the Justice Ministry and one will be decided by the Finance Ministry. Complainants who have applied to the ECtHR will be able to apply to the commission within six months of the law coming into effect. Applications are made through the chief prosecutors’ offices. The commission will decide these cases within nine months at most.

In a pilot judgment in the case Ümmühan Kaplan v. Turkey in March 2012, the ECtHR unanimously agreed that there had been a violation of Article 6.1 (the right to a fair hearing within a reasonable period of time) and Article 13 (the right to an effective remedy) of the ECHR. Applying the pilot judgment procedure to cases of a similar nature, the court suspended the review of thousands of cases provided that Turkey put in place within one year an effective remedy affording adequate and sufficient redress for grievances raised in these cases.

The adoption of Law No. 6234 before the March deadline satisfied the time allowance extended by the court. But the real test starts now, with the monitoring of how this law is implemented in practice. Thousands of cases were suspended by the court to give an opportunity for the Turkish government to address grievances in cases where judicial proceedings exceeded a reasonable period. The court will meanwhile continue to review those already communicated to the Turkish government. If the domestic remedy offered by Turkey satisfies the court, then all these cases will be dropped from the court’s agenda.

Judging from the performance of two other compensation commissions set up by the Turkish government in the past, we can reasonably expect that the new commission on compensation for excessive trial periods will fare well. In 2004 Turkey set up a commission to compensate victims of terrorism. There were a total of 360,000 claims filed through the commission, of which 230,000 have been settled. We do not have the updated figures yet, but 2011 numbers show Turkey has paid a total of 1 billion euros to victims of terrorism. The ECtHR was satisfied with this domestic remedy, saying the commission was effective and the compensation reasonable. As a result, it dismissed many cases of a similar nature.

The government was also instrumental in setting up another commission by the Turkish Republic of Northern Cyprus (KKTC) in 2010 to settle land and property claims brought forward by Greek Cypriots to the ECtHR. In the 2010 Demopoulos v. Turkey case, the court recognized the Immovable Property Commission (IPC) as “an appropriate domestic body” for dealing with disputes and subsequently directed more than 1,400 cases to the commission. As of Nov. 2012, over 4,000 applications have been lodged with the commission. Of these, 279 have been concluded through out-of-court settlements and nine through formal hearings. To date, the KKTC government has paid almost $143 million to the applicants in compensation.

The fact that the Constitutional Court started accepting petitions from individual plaintiffs on Sept. 24, 2012, as part of changes made to the Constitution after a referendum held on Sept. 12, 2010, is expected to further cut the number of cases going to Strasbourg. Many petitions have been filed since then, but the court has only ruled on four thus far, rejecting them all, because they did not meet the admissibility criteria. That is not surprising at all, as many cases fail the screening process in Strasbourg as well due to their failure to meet minimum requirements set up by the court for acceptance.

The speeding up of trial processes in Turkey alongside greater awareness for ECtHR case law among judicial circles gives much hope for the direction the country is taking to align itself with the standards put forward in the ECHR. The newly shaped judicial council in Turkey, called the Supreme Board of Judges and Prosecutors (HSYK), which sits at the heart of judicial system, pays a lot of attention to the violations in trials that may run afoul with the articles of the convention.

The upcoming fourth judicial reform package aims specifically to address the shortcomings of the Turkish judicial system as identified in the case law of the ECtHR. The package consists of nearly 100 amendments to the Turkish Penal Code (TCK), the Counterterrorism Law (TMK) and other laws and is expected to affect nearly 2 million cases in Turkey.

The proposals contain measures that would assist in ensuring that judicial procedures are completed within a reasonable amount of time, remove all obstacles to the right of access to courts, strengthen the rights of convicts and increase the effectiveness of defense attorneys, ensure equality between prosecution and defense, provide for the effective implementation of judicial decisions, remove all obstacles before freedom of thought and conscience, expand freedom of the press and freedom of expression, find solutions for violations of property rights and eliminate obstacles to the right to form associations and assemble freely.

Long periods of pre-trial detention are no longer a major issue in Turkey. The rate of inmates jailed pending trial in Turkish prisons dropped to 23.5 percent by the end of last year from 51 percent in 2001, reaching parity with the EU-27 average at the moment. Justice Minister Sadullah Ergin vows to bring this figure down further. Considering that the same figure is 84 percent in France, 41 percent in Italy, 40 percent in the Netherlands and 38 percent in Luxembourg, Turkey has made some considerable progress.

But long trial processes are still a problem. According to Ergin’s testimony to Parliament, the average period of trial in courts dealing with commerce dropped from 434 days in 2002 to 323 days in 2011. It was 557 days on average in courts for children in 2002, a number that now stands at 306 days. In high felony courts, the average trial period decreased from 347 to 297 days in the same nine-year period. In some specialized courts, the opposite trend is occurring, however. For example, the average number of days of trial in cadastral courts, which deal with land registration disputes, is on the rise because of expansive land surveys completed in Turkey in recent years.

Therefore, many challenges remain to bring the average trial periods, including the appeals process, down to 12 months on average, including the appeals process, but I think Turkey is on the right track for paving the foundations for that objective. To do so, it simply needs time, manpower and a mentality change in judges and prosecutors which will come with a generational change. To reach that point, the country just needs time, manpower and a change in mentality in judges and prosecutors, a shift that will occur over a generation.

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