Hammarberg: Military era constitution at root of judicial woes in Turkey

In a report titled "Administration of justice and protection of human rights in Turkey" published on Tuesday, Council of Europe (CoE) Commissioner for Human Rights Thomas Hammarberg said the state-centered attitudes of judges and prosecutors in Turkey are shaped inter alia by what he called “the background, letter and spirit of the 1982 Constitution.” This has been “a major impediment preventing recent constitutional, legislative and institutional reforms from reaching their full and desired potential,” he argued.

Hammarberg also cited this constitution as the main source for a large number of rulings against Turkey by the European Court of Human Rights (ECtHR). “One of the main obstacles to the effective internalisation of ECHR standards by the Turkish judiciary has been the letter and spirit of the present Turkish Constitution, approved in the aftermath of the coup d'état of 12 September 1980,” he explained.

The commissioner penned the report following his visit to Turkey from Oct. 10-14, 2011, which focused on certain major aspects of the administration of justice and the protection of human rights. Hammarberg welcomed the broad consensus within Turkish society and the political establishment concerning the need to review the Constitution in an inclusive and democratic process. “The Commissioner notes a great degree of consensus currently in Turkish government and society for the need to change the 1982 Constitution,” the report underlined.

The CoE human rights commissioner also praised the establishment of the Reconciliation Commission within the Turkish Parliament, with the participation of all four political parties represented in the legislature. “He notes with particular appreciation that the terms of reference of this Commission indicate that the Turkish public and civil society will be closely associated to the drafting process, and hopes that this transparent process will lead to a more democratic Constitution, firmly placing respect for and protection of human rights at the very center of Turkish law and practice,” the report noted.

The report also touched on other structural problems found in the Turkish judiciary despite serious reforms undertaken and the progress achieved by Turkey in tackling some of the major obstacles in recent years. Hammarberg stressed “these reforms have not yet reached their full and desired potential in aligning Turkish law and practice with the case-law of the ECtHR and that further efforts are necessary” while acknowledging the fact that the Turkish authorities have recognized and sought to address these structural dysfunctions.

He mentioned that the established attitudes and practices followed by judges and prosecutors at different levels giving precedence to the protection of the state over the protection of human rights continue to be a major source of problems encountered in Turkey's human rights record. He cited lengthy proceedings and detentions on remand as serious concerns. “The Turkish authorities should strengthen their efforts to accelerate proceedings and use non-custodial alternatives more frequently. They should also reduce the excessively long time limits for detention on remand, which can currently go up to 10 years,” the commissioner said.

The CoE report found the constitutional referendum held last year to be major progress. “As regards the independence of the judiciary, the Commissioner considers that the recent constitutional and legislative reforms affecting the Supreme Board of Judges and Prosecutors (HSYK) constitute an improvement over the previous situation, where the control of the executive and the high courts over judges and prosecutors was stronger,” it said.

“The HSYK was given the status of a separate and independent public legal entity, with its own budget, administrative staff and premises. Many competences, including inspection powers that formerly belonged to the Ministry of Justice, were transferred to the HSYK as an independent institution. The new HSYK has been established as a strong, autonomous institution with its own Secretariat, not only in legal, but also in actual terms,” the report explained.

Hammarberg also encouraged the authorities to look at the role of prosecutors and the functioning of the judicial police, as well as at the quality of indictments.

Nevertheless he welcomed important progress made in combating impunity for serious human rights violations, in particular in connection with torture and ill treatment even though he said problems remain in that regard. He urged “the establishment of an effective police complaints mechanism, and the mandatory recording of all interrogations” to combat human rights violations.

Hammarberg acknowledged that terrorism poses enormous challenges and difficulties in Turkey but encouraged Turkish officials to combat terror while fully respecting human rights. “Prosecutors and judges need to be further sensitised to the case-law of the ECtHR concerning in particular the distinction between terrorist acts and acts falling under the scope of the rights to freedom of thought, expression, association and assembly,” he remarked.

The commissioner said in his report that he is fully aware of the severe threat posed to Turkish society by terrorism and terrorist organizations as well as of the obligation of the Turkish state to combat it with effective measures, including effective investigations and fair proceedings. However, he noted that the public confidence in the justice system is also important. “This means that any allegation of terrorist activity must be established with convincing evidence and beyond any reasonable doubt. Experience has shown time and time again that any deviation from established human rights principles in the fight against terrorism, including in the functioning of the judiciary, ultimately serves the interests of terrorist organizations,” he warned.

He added that it is crucial to bear in mind that violence or the threat to use violence is an essential component of an act of terrorism and that restrictions of human rights in the fight against terrorism “must be defined as precisely as possible and be necessary and proportionate to the aim pursued.”