ORHAN KEMAL CENGİZ

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ORHAN KEMAL CENGİZ
February 21, 2013, Thursday

Turkey in mirror of European Court of Human Rights

In the 1990s, the European Court of Human Rights (ECtHR) sent a delegation of judges to hold week-long trials. These fact-finding hearings, which were exceptions for other states, have become the rule for Turkey in cases filed by people from the Southeast. The court wanted to evaluate the evidence on site.

There were some unchanged rituals in these hearings, including the reactions by our prosecutors during the ECtHR interrogation. The embarrassing scene I have witnessed many times was as follows: our prosecutor, holding a compilation of the penal codes, moved to the table in the center of the room. At the beginning, he looked quite confident of himself. He put on the earphones waiting for the translation into Turkish of the questions directed at him in English and then started talking about Turkish legislation. After a short while, the judges made the following warning: “Mr. Prosecutor, we are here to find out why you have not initiated an investigation into these allegations rather than hearing some of the theoretical aspects of Turkish legislation.”

This was then followed by other questions; in fact, the questions were simple. They were very, very simple. The prosecutor was just asked why he did not perform his duty and why he did not investigate the allegations of torture and village burnings. First, the prosecutor flushed and then started to sweat and tremble. In an attempt to hide the trembling, he pretended to hold the earphone; but this move was of no use. This was the first time the prosecutor experienced how the legal profession is performed by lawyers from other countries and he did not like what he saw there.

I have always wondered whether the prosecutors questioned themselves after this experience at the ECtHR. Did they ask themselves how they came to this point where they considered the interests of the state rather than the law and how they became figures in the courtroom rather than lawyers delivering justice?

On an individual basis, some of these prosecutors might have questioned these problems. However, how the judiciary's standards in Turkey should be transformed is one of the least discussed issues. Superficial discussions attract attention in this field. The frequent judicial reform packages that the government introduces do not hold any significant element that would change the basis of the system.

It has been decades since the amendments to Article 90 of the Constitution, which prioritizes international law. The meaning of this article is very obvious -- it states that in the case of any conflict between domestic law and the international convention, Turkey must apply the provisions of the international convention. In other words, our Constitution stipulates the implementation of the European Convention on Human Rights (ECHR) and the observation of the ECtHR judgments. But what happened? With a few exceptions, has there been any change in the main codes of the judicial mindset in Turkey?

Unfortunately, the Ergenekon cases, which have been extremely popular in the last decade in Turkey, are being handled by these courts and this mentality. A few days ago, in a case where the former chief of General Staff is being tried, the court dismissed the requests of the defendants to hear their witnesses. With this decision, the court violated a major right of the defendants. Because of this decision, Turkey might be convicted before the ECtHR. By such procedural errors and violations, the Turkish judiciary undermines the legitimacy of a crucial case like the Ergenekon investigation.

If Turkey had learned the lessons from the ECtHR experiences I referred to above, the Ergenekon cases would have been handled by reliance on advanced standards today. Turkey's failure to draw on lessons from past experiences results in low standards in the judiciary. Unfortunately, the low quality of the judiciary still remains a problem and an obstacle in the period of transition that Turkey is going through.

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