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 Vahit Bıçak, a professor of criminal law, argues that plea bargaining should also be introduced into the Turkish judicial system to reduce the caseload of the courts. "There are very successful examples of alternative methods of mediation employed in other countries. We could benefit from these as well," he told Sunday"™s Zaman. He said there are some 5 million criminal cases in the Turkish courts and that 300,000 of them are dropped annually because the statute of limitation expires.
(Today's Zaman, 15 January 2012) Turkey has made significant progress in the last couple of years in the overhaul of what used to be an archaic judicial system, one of the key benchmarks for the maturity of Turkish democracy for watchdog organizations, yet so much remains to be done to raise Turkey"™s standards set by the European Court of Human Rights (ECtHR), which was established according to the, European Convention on Human Rights (ECHR), of which Turkey is a signatory.
The most important breakthrough in judicial reform was achieved last year with a landslide approval in a public referendum amending a number of constitutional articles -- many related to judicial changes. For the first time, it introduced the individual right to petition the Constitutional Court for alleged violations of fundamental human rights. It also established the Ombudsman Office for grievances regarding the misconduct of government employees and agencies.
More importantly the constitutional amendments revamped the structure and operation of the Supreme Board of Judges and Prosecutors (HSYK), Turkey"™s core judicial council, which manages promotion, inspection and training of all judges and prosecutors. The HSYK became an independent body with its own secretariat and budget, while its composition was opened to diverse groups within the judiciary and rescued from being hostage to a select few in the higher judiciary. The Justice Ministry yielded most of its judicial powers, especially the inspection of judges and prosecutors, to the HSYK.
Despite all these positive changes, the systemic problems that diminish the functionality of the whole judicial system remain a source of concern for many. For one, the excessive length of proceedings is the foremost problem in the justice system. Just last year, the ECtHR ruled against Turkey in 83 cases, saying that there had been violations of Article 6 of the European Convention on Human Rights (ECHR), which protects the right to a fair trial, including, among others, a reasonable time for the completion of court proceedings. In Turkey, a case can take up to five years on average to be concluded, and there are many cases that have been pending for decades.
This situation creates numerous problems with regard to human rights, especially if a suspect is eventually found innocent after a long period under arrest. With last year"™s increase in both the number of chambers and senior judges in the Supreme Court of Appeals and the Council of State, the huge backlog piled over years has started to decline. Justice Minister Sadullah Ergin said he expects all those dossiers at the Supreme Court of Appeals will have been evaluated within two-and-a-half years.
The government has not fulfilled its promise of newly established regional appellate courts to reduce the number of cases ending up in the higher judiciary. The law authorizing these special courts was adopted in 2005, and the HSYK even appointed judges and prosecutors to these courts last year. But logistical problems such as the lack of enough courthouses still preclude them from functioning.
Faik Tarımcıoğlu, a retired military judge and former minister, attributes most problems in the judiciary to military coups in the past. "It all started with the 1960 military coup during which the judges and prosecutors started to see themselves as part of the government bureaucracy to protect the state against individuals. Under military pressure, the court even ruled for the death of a prime minister by hanging based on trumped-up charges. This culture spoiled the very essence of the Turkish judiciary, and today we are feeling the impact of this military interference," he told Sunday"™s Zaman.
In a recent report titled "Administration of justice and protection of human rights in Turkey" published this week, 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 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"™Ã…©tat of 12 September 1980," he explained.
Another systemic problem in Turkey is that prosecutors often resort to remands in custody and judges accept these requests. For example, in revisions made to the Code on Criminal Procedure (CMK) in 2005, probation was introduced. The law allows judges to use probation measures or order detainees/convicts to wear an electronic monitoring system or have them check in at a police station on a regular basis either during the trial or after they are released on parole. This would reduce the number of pre-trial detentions in Turkey drastically. Unfortunately, most judges, upon counsel by public prosecutors, do not take the risk and immediately order suspects currently being tried into state custody. Even defendants for lesser crimes are being incarcerated during the trial and appeal period.
The new HSYK seems to be keen on practicing these new remedies as alternatives to incarceration. Because the HSYK has the authority now to supervise inspectors who could review cases in which judges unnecessarily render custody decisions, this could give quite a push for judges and prosecutors in leaning towards new remedies.
Professor of law Cumhur Şahin at the Ankara-based Gazi University is optimistic that the new reforms will straighten out many problems in the judiciary. He worked as a consultant during the drafting period of the Turkish Penal Code (TCK) and advised the government on the evaluation of the changes. "I cannot disclose what the government is doing in terms of judicial reforms. What I can say, however, is that there will be significant steps taken in the coming days in terms of judicial reform," he told Sunday"™s Zaman.
It seems the reforms undertaken so far have already had an impact on speeding up court proceedings in Turkey. Justice Minister Ergin said last month that the rate of inmates jailed pending trial in Turkish prisons stands at 28.4 percent, a figure he said is lower than the figure in a number of European countries. The rate of inmates jailed pending trial in Italy is 41 percent, 40 percent in the Netherlands and 38 percent in Luxembourg. As of 2011, there are 128,000 inmates in Turkish jails, including convicts, suspects jailed pending trial and inmates who are awaiting the decision of the Supreme Court of Appeals. Ergin said only 36,000 of these people are jailed pending trial, while the rest are considered convicts. In addition, 27,000 of these prisoners have been jailed for less than 12 months, he said.
New package on the way
Ergin also said during a TV interview this week that a comprehensive package of reforms will be submitted to Parliament as early as next week with the aim of speeding up judicial proceedings. He did not elaborate on the details, however.
Another systemic problem seen in the Turkish judicial system is that prosecutors in Turkey exercise little restraint in initiating proceedings, including in cases without merit, which compounds the problem of backlog in Turkish courts. For example, Article 171 of the TCK allows prosecutors to use discretion in their investigation before referring it to the court. If the prosecutor finds that there is no compelling evidence to pursue the case, he or she may drop the investigation and dismiss the charges initially raised.
Tarımcıoğlu laments the fact that prosecutors do not use filtering mechanisms in opening cases in the courts. "They just turn whatever the police and gendarmerie submit them into an indictment. This creates a heavy burden on the court system," he noted.
Unfortunately, Tarımcıoğlu is right. The prerogative of prosecutors has not been effectively employed, and most cases, including frivolous ones, have ended up in the courts, creating a huge backlog. Hope emerged with the new HSYK guidelines on this discretion, encouraging prosecutors to use their powers in much more efficient and effective ways. The same can be said for the mediation procedures adopted as a way to reduce the backlog. A new piece of legislation titled "Draft Bill on Mediation in Legal Disagreements" was sent to Parliament again by the government in the new legislative term, and it is expected that Parliament will take up the issue this month.
Vahit Bıçak, a professor of criminal law, argues that plea bargaining should also be introduced into the Turkish judicial system to reduce the caseload of the courts. "There are very successful examples of alternative methods of mediation employed in other countries. We could benefit from these as well," he told Sunday"™s Zaman. He said there are some 5 million criminal cases in the Turkish courts and that 300,000 of them are dropped annually because the statute of limitation expires.
Another lingering problem in the judicial system is caused by the rigid application of anti-terror legislation in Turkey. Article 220 of TCK allows for a very wide margin of interpretation, in particular in cases where membership in a terrorist organization has not been proven and when an act or statement may be deemed to coincide with the aims or instructions of a terrorist organization.
Related to this, the government has still failed to act on revising relevant articles of the TCK to allow journalists to exercise their freedom of expression. The archaic laws still on the books allow some overzealous and overreaching prosecutors to go after innocent reporters who are simply doing their job of informing the public. According to the Ministry of Justice, there are over 5,000 cases against reporters, either at the investigative stage or in the trial phase. They stand accused of violating the confidentiality of legal investigations even though the indictment and the evidentiary folders are all public knowledge.
Some of these cases involve charges such as "attempting to influence a fair trial" and "insulting a public official." The definition in the law is very vague and permits prosecutors to interpret the law as they see fit. With some differences, it may resemble the investigation launched against Republican People"™s Party (CHP) leader Kemal Kılıçdaroğlu over remarks he made in November following a visit he paid to Mustafa Balbay and Mehmet Haberal, who are both being held in Silivri Prison as part of an investigation into Ergenekon, a clandestine criminal network charged with plotting to overthrow the government.
During his speech, Kılıçdaroğlu likened Silivri Prison to a "concentration camp" and said he "cannot accept" calling the judges hearing the Ergenekon case "judges." He also compared the current state of the judiciary in Turkey to the periods of Italy"™s Mussolini or Germany"™s Hitler. Silivri Public Prosecutor Ali İşgören launched an investigation into Kılıçdaroğlu"™s remarks and accused him of "attempting to influence a fair trial" and "insulting a public official." The prosecutor has also requested the removal of the CHP leader"™s parliamentary immunity.
2012-01-15
Abdullah Bozkurt Ankara |
