Turkish judiciary poised to boost ECHR compliance

March 20, 2012, Tuesday/ 12:56:00

The top judicial watchdog has introduced new criteria for assessing whether legal professionals are fit for promotion in a move that is highly appreciated by legal commentators.

Before making decisions as to the promotion of judges and prosecutors, the Supreme Board of Judges and Prosecutors (HSYK) will examine whether said judge or prosecutor's decisions have been made in compliance with the European Convention on Human Rights (ECHR) and rulings by the European Court of Human Rights (ECtHR).

Several legal commentators told Today's Zaman that Turkey's adjudication-related problems mainly stem from a practical disregard of judicial reforms and legal amendments, maintaining that the newly introduced criteria will force old-school prosecutors and judges to pay greater respect to the ECHR.

Institute of Strategic Thinking (SDE) President Yasin Aktay feels that the HSYK's decision will boost Turkish legal standards. Speaking to Today's Zaman, retired Supreme Court of Appeals Public Prosecutor Ahmet Gündel also indicated that the HSYK's decision will positively encourage old-school judges to create a body of rulings in compliance with the ECHR.

Retired prosecutor Reşat Petek said: “If the number of applications filed with the Strasbourg court does not drop and the court's decisions finding Turkey in violation of the convention do not decline despite existing legal arrangements, then Turkey needs to take extra measures to make sure that the ECtHR's rulings do not go unheeded in practice by its judges and prosecutors. In this regard, the HSYK's decision is a properly made one.”

Although Turkey ratified the ECHR and made it part of its domestic legal system, Petek noted, the courts continue to place greater emphasis on the body of domestic court rulings and legal conventions prevalent in the country in practice, which make it necessary for authorities to take additional measures to ensure that the ECHR and universal legal norms are observed.

“The volume of applications filed with the European Court of Human Rights against Turkey implies that it is enough to pass laws [if there is no change in practice]. Article 90 of the Constitution was amended, the ECHR was ratified and legal arrangements were made for the retrial of cases in which Turkey is found in violation of the ECHR. Yet this does not make any difference in practice. So, the HSYK felt it necessary to consider whether judges or prosecutors pay heed to the rulings of the European Court of Human Rights when assessing their performance. I see this as a very positive development. It will make judges and prosecutors pay greater regard to and apply superior legal norms," he said.

Underlining that great responsibility falls on the shoulders of HSYK inspectors to achieve the expected improvements, Petek explained that inspectors should make recommendations as to how to keep decisions in line with the ECHR to judges and prosecutors during their inspections.

He added that during the judicial review of decisions made by courts of first instance, the Supreme Court of Appeals should attach due importance to the matter of compliance with the ECHR, as this will significantly reduce breaches in practice.

State-oriented mentality

Professor Aktay pointed out that in Turkey, legal professionals are trained with a state-oriented mentality. “Judges and prosecutors tend to glorify the state at the expense of the individual in cases where the interests of the two are in conflict. This is because they have been trained with a mindset that favors the state. Turkey has still been unable to rectify this mentality. The decision to force judges and prosecutors to take the ECHR into consideration may cause the Turkish legal understanding to evolve quickly. This may be effective in catapulting Turkish legal standards to the level of universal legal norms,” he explained.

Aktay argued that recent judicial reforms as well as reforms in the training of legal professionals imply that change is underway, but that it may take more time to make the older generation of judges and prosecutors change their mentality.

He added the case concerning the murder of Hrant Dink is a good example of how legal professionals find it hard to catch up with legal amendments and mentality changes.

Noting that the HSYK is making great efforts to tackle the problems seen in practice, retired prosecutor Gündel stressed that the older generation of legal professionals is failing to develop a tradition based on international conventions.

He maintained that despite the changes made in 2004 and 2005, the ECHR criteria were not held in their proper high esteem. "Although judges and prosecutors are supposed to make decisions favoring individuals by comparing domestic laws with international conventions in cases where there is a conflict concerning fundamental rights and freedoms, they have failed to do so because they lack the tradition and habits. To make this happen, the HSYK is not only making compliance with the ECHR a performance criterion for promotions, but is also revving up on-the-job training. I find these to be efforts in the right direction," he said.

ECtHR decisions translated into Turkish

The Ministry of Justice has set up a website where users will be able to find Turkish translations of every ruling made by the ECtHR concerning Turkey, as well as statistics and international reports about the court.

The press undersecretariat of the Ministry of Justice announced the launch of the website on Wednesday, saying the site will play an important role in minimizing human rights abuses and in ensuring the swift execution of rulings made by the ECtHR.

The website is being run by the International Law and Foreign Affairs General Directorate of the Ministry of Justice. The ministry's human rights department, which is in charge of preparing Turkey's defense statements in human rights-related trials brought against Turkey at the ECtHR, is also working to minimize rights violations.

The website will also facilitate the human rights department's monitoring of ongoing legal processes regarding rights violations.

Turkish translations of certain rulings against other countries found guilty of human rights violations will also be available on the site if the cases are deemed relevant. The website will also serve as a catalogue for ECtHR rulings on Turkey and will facilitate academic and legal research as well as the collection of statistical data. According to the ministry, to enhance research in this field, it will establish joint projects with other public agencies on human rights, national and international symposiums and educational and training events.

The ministry also announced that as per a recent protocol signed between it and the Ministry of Foreign Affairs, the human rights department of the Ministry of Justice will prepare defense statements for Turkey in ECtHR cases against the country. In the past, the Foreign Ministry's legal department would send defense statements to the ECtHR.

The main purpose of the website will be to inform judges, prosecutors and citizens on ECtHR precedents and rulings. The web address is www.inhak.adalet.gov.tr. There are currently translations of 1,400 rulings on the website, and the site will be updated with each new applicable verdict.

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