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January 12, 2012, Thursday

Fixing the justice system

Justice Minister Sadullah Ergin has vowed to shorten pre-trial detention periods, a measure much needed to ensure a fairer justice system.

This is a positive development, even if the goal of wrapping up cases within a year seems ambitious, given that the Supreme Court of Appeals had a backlog of 1.1 million cases in 2010, and trials regularly last several years. But this step is only one of many needed to improve Turkey’s dysfunctional judicial system.

A report published this week by Council of Europe Commissioner for Human Rights Thomas Hammarberg points to minor improvements in some aspects of the judicial system in recent years. But his comprehensive assessment highlights that, in spite of reforms and a new penal code introduced in 2005, the system still places state interests ahead of individuals’ rights -- an approach particularly visible in the high level of impunity for human rights violations and the disproportionately lenient sentences handed down in cases of abuse by state officials.

Obstacles to the swift and fair delivery of justice fall into several categories. One of the most acute issues is the frequent use of remand which, combined with the slow pace of proceedings, leads defendants to languish in jail for lengthy periods. A shortage of judicial personnel partly accounts for this unfortunate state of affairs, but the commissioner also mentions the quality of investigations and the fact that prosecutors are not always playing their role as “gate keepers” effectively. Defendants are often arrested at an early stage of the inquiry and held while further evidence is collected. Remand, the commissioner points out, should be an exceptional decision taken after due consideration of the case at hand rather than applied routinely to a vast catalogue of crimes.

As of September 2011, according to the report, 43 percent of people held in Turkey’s prisons were awaiting trial. That ratio was even higher in Diyarbakir’s D-type prison, where 540 of 740 inmates were on remand when he visited it in October 2011. That the spirit of the 1982 Constitution remains a major obstacle to proper justice is evident, but after nearly a decade in power, the ruling Justice and Development Party (AK Party) cannot be exonerated of all responsibility. The 2010 referendum led to some positive changes, but not to a radical rethinking of what constitutes justice. The role of the justice minister in the appointment of judges and in the Supreme Board of Judges and Prosecutors (HSYK) as well as the cozy relationship between prosecutors and judges, who are considered part of the same profession, affect the appearance of impartiality and independence.

Hammarberg expresses understanding with the challenge posed by the fight against terrorism, but he is critical of “the definition of terrorism and membership of a criminal organization, and their wide interpretation by the courts.” “Violence or the threat to use violence is an essential component of an act of terrorism,” Hammarberg underlines. In sharp contrast, Parliament Speaker Cemil Çiçek recently stated that most of the journalists currently detained were arrested for being “members of a terrorist organization.” Turkey has to confront its past and tackle the illegal actions of the deep state, but it needs to do so in a transparent and fair manner. In particular, it needs to remember that Article 90 of the Constitution “gives precedence to international treaties on human rights over national laws.” The use of courts and prosecutors with special powers, which deal with cases handled in the past by the controversial State Security Courts (DGM), raises some concerns. Whatever their alleged crimes, defendants should always be told of all evidence against them and be able to cross-examine it.

High-profile arrests such as that of former Chief of General Staff Gen. İlker Başbuğ and other military officers as well as of hundreds of people charged for alleged membership in the Kurdish Communities Union (KCK) have put Turkey’s justice system under the spotlight. The lack of sufficient transparency in criminal proceedings undermines the credibility of trials like Ergenekon, which are of great importance to the country. The Hrant Dink case has also been seen as an important test that Turkey’s judiciary has so far failed. These shortcomings are costly to this country. Between 1995 and 2010, the European Court of Human Rights (ECtHR) delivered more than 2,200 judgments against Turkey due to the shortcomings of its judicial system. Aside from the negative impact on Turkey’s international reputation, a poorly functioning judicial system, which is not seen as fair and impartial, also undermines prospects for peace at home. Hammarberg points out that “one of the major lessons learned in the fight against terrorism in Europe has been the importance of public confidence in the justice system.” Correcting the deficiencies of the judicial system remains a key challenge of Turkey’s democratization process.

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