Will compensation correct the state’s fault?

Complaints about the “excessive lengths of proceedings” make up the largest category of applications against Turkey at the European Court of Human Rights (ECHR). As of Sept. 23, 2012, Turkish citizens complaining to the ECHR in this context will be processed by a Compensation Board set up in Ankara by Law no. 6384.

Did you know that one of the architects of the famous 2002 ECHR judgment, known as “Kudla vs. Poland,” was the current İzmir deputy from the Republican People’s Party (CHP), Rıza Türmen?

Türmen, who has his signature underneath this ECHR judgment, on Oct. 31, 2012 explained the justification of the ruling as such: “The ECHR was blocked up with cases related to the excessive lengths of proceedings. A solution was sought to ease its workload.”

According to Türmen, the solution that the ECHR found in 2002 was to advise those states where excessive lengths of proceedings constitute a structural and systematic feature to form an internal legal mechanism to examine these complaints and solve the issues, through compensation if necessary.

After the court in Strasbourg opened this door for Poland in 2002, a series of countries including Italy and Greece made the required adjustments to their legislation, in order to accommodate a compensation mechanism. In its judgment of the “Ümmühan Kaplan vs. Turkey” case in 2009, the ECHR advised the Turkish government to set up a commission.

Türmen, unaware when he made his decision in 2002 that one day he would speak as a deputy in the Turkish Parliament, said he approved the motion in principle but there were a series of drawbacks. Primarily, the method used to set up this board in Turkey harmed the independence of the commission, he believes.

The board consists of five members, four of which are appointed by the justice minister from judges and prosecutors and one of which is appointed by the finance minister from his ministry staff. According to Türmen, the fact that the people to whom one files a complaint about the state are employees of the state represents a failure to meet the basic criteria of a “just trial” as defined by the European Convention on Human Rights.

Another criticism from Türmen is that the jurisdiction of the board has been defined in broad terms, making it possible to take up cases of rights violations other than the excessive length of legal proceedings.

The second article of the law states that - taking into consideration the volume of violation rulings against our country - the clauses of this law may be applicable, with a Cabinet decree, to other violation fields suggested by the Justice Ministry.

The problem stems from this article. The ECHR advised us to form a board only to deal with the excessive lengths of proceedings. It does not have a similar expectation about violations in other fields. For the government to have received such broad jurisdiction from Parliament may result in serious drawbacks in the future.

The government may try to self-appoint this commission to deal with, for example, compliant files that pile up at the ECHR regarding torture cases, or excessive periods of detentions, and close the cases by paying compensation.

The opening of such a path may prevent citizens claiming their rights at the ECHR. This practice, if transformed into a widespread method, may cause the state to opt for the easy solution of “violate, pay the compensation, and be finished,” instead of the commitment to straighten itself out.

The significance of ECHR rulings is that they diagnose issues that lead to rights violations and force states to amend their legislation and practice. Closing the files by paying compensation may cause Turkey to distance itself from the line of universal law represented by the ECHR.

In fact, in the event that such a tendency emerges, it is doubtful that the ECHR would give the green light.
Sedat Ergin is a columnist for daily Hürriyet in which this piece was published on April 17. It was translated into English by the Daily News staff.