Sehnaz Turan

Execution of European Court of Human Rights (ECHR) Judgments in Turkey

Sehnaz Turan

The obligation of states to execute the judgments of the ECtHR is laid down under Article 1 of the European Convention on Human Rights. Article 1 of the Convention obliges all states to give full enjoyment of the rights and freedoms, as defined in the first section of the Convention, to everybody under their jurisdiction.

In the light of this, it is the responsibility of all the contracting states to ensure that the Convention is not violated, remedy the damages and to take preventative measures so that similar violations do not occur.

When evaluating the function and the position of the Convention, two points are of importance. Firstly, the protection mechanism sighted by the Convention is essentially in the jurisdiction of the states who are party to the Convention; secondly the Convention is a dynamic instrument and requires continuity. This continuity can only be ensured by the judgments on applications made to the Court.

In many of its judgments, the Court has underlined that its principle duty in relation to the Convention is to protect and interpret the defined rights in the Convention and its additional protocols within the framework of certain criterions. Hence, the Court’s role would not be to supervise the adaptation of arrangements and improvements made to domestic laws by the responsible states in accordance with judgments where violations were established.

As a rule, with a view to assisting the respondent State to fulfill its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a systemic situation it has found to exist. In such circumstances, it may propose various options and leave the choice of measure and its implementation to the discretion of the State concerned.

In general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention. However, the respondent state has to take into consideration the requirements of the Court in order to avoid similar kind of cases being brought before it.

For the cases in which the Court has found a violation, the main principle to remedy the violation is the restituio integrium principle. The Court in its various judgments has pointed to the fact that this principle has two aspects.

· To bring the applicant as much as possible to the position before the violation
· To remedy all the damages of the applicant due to violation

The main objective of the restituio integrium principle is to eliminate as much as possible all the consequences of the violation and to re-instate the situation before the violation.
According to article 46 of the Convention, the Contracting Parties undertake to abide by the final judgment of the Court in any case, to which they are parties.
In addition, the final judgment of the Court shall be transmitted to another body of the Convention, namely to the Committee of Ministers to supervise its execution.

The contracting states shall make legal and administrative amendments in order to remedy the violation of the applicant’s rights and to prevent similar violations in the future. The contracting States are obliged to submit the legal and administrative amendments and the measures that are taken to the Council of the Ministers.

The sanctions that can be applied and the application procedure have been defined in the Statute of the European Council. 
According to article 8 of the Council Statute, any member which has seriously violated Article 3 may be suspended of its rights of representation as requested by the Committee of Ministers. If such member does not comply with this request, the Committee may decide that it must cease to be a member of the Council, from such date as the Committee may determine.
However, the Committee has not shown itself to be willing to apply this sanction to states who have not executed ECtHR judgments.

Turkey
Turkey declared its recognition of the individual application procedure to the ECtHR in 1987.  Since this time, numerous applications have been lodged against Turkey, citing violations of the Convention’s provisions.
Lately it can hardly be said that Turkey has had the will to execute the judgments of the ECHR, except perhaps the Court’s judgments on compensation provisions. However, after the 1999 Helsinki Summit recognizing Turkey as a candidate country, Turkey has been trying to ensure the execution of the ECtHR judgments in its domestic law.
As a result of this policy, Article 90 of the Turkish constitution was amended. Following this amendment, if there is a conflict between the fundamental rights and freedoms contained within international agreements that Turkey has ratified and domestic legislation, the international agreement will take precedence.

Moreover, amendments have been made to civil and criminal procedures in Turkey, as a result of the restitution in integrum principle. A re-trial mechanism has been adopted in order to comply with certain ECtHR judgements.
There is no exception in civil proceedings in a re-trial.  In criminal proceedings, a re-trial is a way of obtaining just satisfaction in Turkey following a judgment of the ECtHR. 

The reason for this attitude is mainly to avoid the retrial of Öcalan.   The Grand Chamber of the ECtHR declared in its decision in Öcalan v Turkey on May 12 2005 that Turkey had violated his right to a fair trial. The Chamber in the 210th paragraph of its decision, concerning the independence and impartiality of the state security courts, has stated that the most appropriate form of redress would be for the applicant to be given a retrial without delay.

Despite the findings of the Grand Chamber, the present legal regulations under Turkish Law impede the execution of this judgment. Hence, theoretically or practically, the Turkish legal system does not allow for the re-trial. At this point the legal representatives of Öcalan have applied to European Council of Ministers to make a recommendation to Turkey to abolish the provision in domestic law that prevents the retrial of their client, and to ensure that his right to a re-trail is realised. The decision of the Council of Ministers on this issue will not only be important for Öcalan, but also for the 90 other cases which are waiting for an amendment of domestic law to allow a re-trial.

The other significant point of this case regards the legal representatives of Öcalan. 12 lawyers who have been representing Öcalan from his first trial have been barred from being his representative following an amendment to the Criminal Code of Procedure. At the same time, the Ministry of Justice has denounced 26 lawyers who are members of his legal team, foreseeing their prohibition as well. It would appear that the applicant is being left without a proper defense and legal representation.
Since the investigations have not yet been finalized, the decision to bar the lawyers has been implemented in violation of the innocence principle. More importantly though, this violates the applicant’s right to a defense, as he is not able to choose his own lawyers which weakens his defense.

This practice is completely contrary to the ‘Havana Rules-Basic Principles on the Role of Lawyers’ as well as Article 6 of the European Convention, the right to a fair trial.

The other point regards the amendment to article 5 of the Criminal Code of Procedure. According to the amendment (Law no. 5351), under article 5, a third party may be present during the consultation between a prisoner and his lawyers and any documents that are exchanged may be confiscated pending an investigation.

This amendment has meant that a third party has to be present during the consultations between Öcalan and his lawyers, the whole consultation has been under his supervision and conversations have been recorded. Notes taken during the consultation have been confiscated and sent for investigation. This practice is totally contrary to the findings of the judgement of the Grand Chamber of the ECtHR which held that the presence of a third party during consultations was a violation of Article 6(3) of the Convention (paragraph 133).

These regulations and their practice are also in violation of Articles 8 and 22 of ‘Havana Rules-Basic Principles on the Role of Lawyers’ as well as Article 6 of the General Principles taken in the Committee of Ministers’ advisory decision dated 25 October 2000.

Conclusion
It is obviously important that Turkey executes the judgements of the ECtHR  as part of the accession process to the European Union. Turkey is a defendant in numerous cases pending before the ECtHR and will display its commitment to the democratization process by properly enforcing the judgments. The main test though will be the abolition of the legal barriers which remain to re-trials.