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February 2010
With the number of complaints about it to the European Court of Human Rights (ECtHR) increasing steadily each year, Turkey has taken on the status of the country with the most ECtHR decisions handed down against it. Turkish human rights experts say that the nation’s faulty judicial system is to blame. Coming in first on the list of nations who have European court cases decided against them, Turkey was, in 2009, the nation from which the fifth most complaints to the ECtHR originated. There were 4,474 applications to the European court complaining about Turkey in 2009, a noteworthy increase from 3,706 in 2008. In 2009, 341 cases were decided against Turkey, more than any other nation -- and Turkey also holds the overall record for 1959-2009, with a total of 18 percent of all European court decisions against a country being cases won against Turkey. Speaking with Sunday’s Zaman as the issue of judicial reform nears the top of the national agenda in Turkey, human rights experts underlined that 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), ties this lack of judicial recourse to the place of the Supreme Board of Judges and Prosecutors (HSYK) in the Turkish judiciary. Citing negative pressure from the HSYK on justices and attorneys, Ünsal said: “Turkey’s legal system has structural problems. Among the most important of these is judicial guarantee. Just look at what the HSYK has done. While there’s an HSYK whose decisions are not up for debate or review, how is it possible to conduct an impartial trial?” Ünsal said that the latest flurry of controversy over the judiciary in Turkey is politically and ideologically based. “Unfortunately, in our country the perception of law was founded upon the principle of protecting the state. The status quo structure in place today, led by the HSYK, seeks to perpetuate this mentality. The fundamental problem here is a legal mentality that sees individuals as citizens who are second-class, coming after the state.” Attorney Sezgin Tanrıkulu, among the first lawyers from Turkey to apply to the ECtHR, says the Turkish legal system has yet to internalize modern standards. The former head of the Diyarbakır Bar Association, Tanrıkulu said that the Turkish judiciary had developed over time in opposition to freedoms, asserting: “Individuals who are part of the judiciary in Turkey tend to exhibit the reflex of making the state’s priorities their own priorities, instead of working to protect and expand basic freedoms. When this happens, what you get is justices and lawyers resisting the implementation of the standards developed by the European court.” Commenting on the marked increase in applications to the European court from Turkey between 2008 and 2009, Tanrıkulu said that with 20 years of experience with the European court, the norm would be for applications to the court to be on a downward trend as Turkey learns the lessons from the rulings against it. “If this country has been party to the European Convention on Human Rights for over 50 years and has recognized the rights of individuals to apply to the European court for over 20 years, then the judiciary should be more sensitive to the standards that the court has developed and should internalize its rulings. The standards emerging from the European court should be applied to all citizens. But we can see that we haven’t begun to try to achieve the standard of fundamental rights and freedoms that are protected by the ECtHR.” MAZLUM-DER’s Ünsal emphasized the need for urgent judicial reform to address this lack of justice, noting in particular that among the reforms there needed to be a solution to the laborious pace of the judicial bureaucracy in Turkey. Citizens are often victim to long and drawn-out judicial processes that put off any results for an unacceptable amount of time, he said. “People complain of both delayed justice and a lack of consideration for what is just in the rulings dealt out by the Supreme Court of Appeals, the Council of State and other top courts. Astounded by some of the rulings made, they apply to the European court. This in itself is indicative of the problematic nature of Turkey’s judicial structure,” he asserted. You don’t need a law degree to see the importance of rulings against Turkey In 1990 Tanrıkulu became the third person to submit an application from Turkey to the ECtHR and since then has taken many successful cases to the court. He says the situation regarding Turkey has become so clear at the European court, that it’s not necessary to be in the legal profession to understand the gravity of what is going on. “Fifteen to 20 years ago the decisions and attitudes of our courts being taken up with the European court would have been understandable. But [nothing has changed in terms of Turkey’s implementation of these rulings] and so in my law bureau, not even legal interns but secretaries fill out the European court application forms; we [lawyers] are fed up with filling out these forms. We’ve gotten tired of saying, ‘Let justice be done’,” he said. Speaking of the problems of implementing the European court’s decisions in Turkey, Tanrıkulu indicated the connection between the “protect the state” legal mentality and non-adherence to European court rulings. According to Tanrıkulu, individuals in the legal system with this mentality think to themselves, “I’m going to do my duty [in protecting the state], and before I have to face up to anyone about it, I’ll be reassigned in a year or two, anyway. It takes five to six years for a ruling to return from the European court, so what’s it to me?” ALİ ASLAN KILIÇ December 2008
Justice Minister Mehmet Ali Şahin said that so far 462 files had been forwarded to his Ministry requesting permission to try people under Article 301 of the Turkish Penal Code. On the basis of the European Convention on Human Rights and the case law of the European Court of Human Rights the Ministry had granted permission in 58 cases and rejected permission in 258-260 cases. The remaining cases were still pending. The Minister maintained that the proportion of 20% permissions was just the opposite to 80% permissions that had been given earlier. Commenting on the case of journalist/writer Temel Demirer the Minister said he gave permission, because Demirer had called on people to commit a crime, had invited them to terrorism and violence and he had termed the State a killer. Therefore he had given permission for a trial, but the decision would be taken by a court. November 2008
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