Lacking steps in the right direction
It is evident that the Fourth Judicial Package, which emerged with the initiative of Justice Minister Sadullah Ergin, will keep the public busy for a long time. The package has caused a wide range of reactions; some groups found it insufficient, others regard it as a “revolution.”
First of all, the package brings many regulations in the right direction and aims for harmonization with the court practices of the European Convention on Human Rights and European Court of Human Rights, though it has some shortcomings.
However, it does not offer a solution to the violation of rights and many problems that are present in the current judicial system.
When the overall picture is viewed, it is possible to say that the regulations in the package will mostly please the European Court of Human Rights, since the justification of the draft read that one of the main aims of the package is to “bring Turkey’s image to a better point in terms of the ECHR decisions,”
Last year, Turkey ranked second after Russia on the list of countries that violated the ECHR.
Interestingly, the justification of the package reads, “When the results of the applications made in previous years are considered, it is envisaged that most of the appeals passing the precondition evaluations of the ECHR will result in a decision of violation.”
The expression “most of the appeals” falls short of depicting the situation. In 2012, the ECHR issued 123 decisions on Turkey, 117 of which resulted in conviction, while only three of them did not result in violation. The remaining three were categorized among “other decisions.” In this case, it would be more relevant to make a quantitative evaluation: 95 percent of the decisions on Turkey resulted in a conviction, while only 2.5 percent result in acquittal. Unfortunately, when looking at this picture, it can be seen that the operations of the Turkish judicial system has no aspects to take pride in.
It could also be said that the new package is trying to ease the heavy problems to a certain degree.
For instance, it includes an important regulation on the compensation amounts in the cases opened by citizens against the administrative proceedings of the state. The heavy-handed judiciary may stifle the amount of compensation, and Turkey has been convicted in the ECHR for this reason. With a regulation made in the Administrative Trial Procedure Law, if it is understood that a compensation amount is higher during legal proceedings, the complainant will have the right to increase the amount he demands.
The package also introduced another regulation parallel to the one above. In the current system, the long duration of the cases opened against the state’s expropriation acts eliminates the compensating effects of the amount offered to the citizen who are at a loss especially due to the effect of inflation and insufficient default interest. A new phrase added on the Expropriation Law states that if cases opened for price determination do not find a result in four months, legal interest will be added to the determined price. This is surely in favor of the citizens harmed by expropriation activities.
Another regulation, which would probably be the most welcomed one, is abolishing the lapse of time for torture crimes. The expression “Lapse of time shall not operate for this charge,” has been added to Article No. 94 of the Turkish Penal Code, which regulates torture crimes.
A part of the regulations that reforms citizen rights in the package is based on Article No. 5 of the European Convention on Human Rights on detainments. One of the problematic implementations that the ECHR insisted on regulating was solving the objections against detainments through the case file by court board and not handling them in the trials during which the parties are heard. It is a well-determined step to bring the obligation to hear defendants and their lawyers in the objections against detainments. Regulations such as sharing the prosecutor’s opinion with defendants and lawyers after the objections must also be welcomed.
Also, in the current system, Article No. 318 of the Turkish Penal Code defines the charge of “alienating the public from military service” with general expressions. The convictions made in this regard were found against freedom of expression by the ECHR. So the new regulation replaces this general expression with a relatively more concrete criterion saying “those inculcating or encouraging fleeing or deterring from military service.” The result of this reform could only be observed in practice. It should also be kept in mind that this step is far from meeting the ECHR’s expectation of “conscientious objection” reform.
It is necessary to welcome such regulations. The main discussion, however, stems from the subjects that were not included in the package and the articles that redraw the delicate boundaries between terror crimes and freedom of expression. I will argue them in a later article.