“Long-standing, systemic shortcomings in the administration of justice in Turkey adversely affect the enjoyment of human rights” said the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, releasing today a report on the impact of the administration of justice on the protection of human rights in Turkey.
Despite serious reforms undertaken and the progress achieved by Turkey in tackling some of the major obstacles in recent years, its law and practice is still not in line with the case-law of the European Court of Human Rights. One of the major factors hampering progress lies in 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.
Lengthy proceedings and detentions on remand continue to raise 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 ten years.” The Commissioner also encourages the authorities to look at the role of prosecutors and the functioning of the judicial police, as well as at the quality of indictments.
The Commissioner welcomes important progress made in combating impunity for serious human rights violations, in particular in connection with torture and ill-treatment, but considers that problems remain, some of which have been demonstrated in the investigations into the murder of the writer and journalist Hrant Dink. The need to obtain prior administrative authorisation for investigating cases not relating to torture, short prescription periods, and lack of statistics concerning the fight against impunity are the main factors of concern. The Commissioner is also concerned about disproportionately lenient sentences handed down in certain cases, for example those involving violence against LGBT persons.
Commissioner Hammarberg urges the authorities to improve the standing of victims in criminal investigations and proceedings. He encourages the establishment of an effective police complaints mechanism and the mandatory recording of all interrogations.
He further expresses his concern about the way certain offences relating to terrorism and membership of a criminal organisation are defined in the Turkish legislation, leaving room for a very wide interpretation by courts. “Terrorism poses enormous challenges and difficulties, but it should be fought 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”.
The Commissioner stresses the importance of guaranteeing a fair trial by ensuring adversarial proceedings and equality of arms at all stages of the criminal procedure. He points to a number of shortcomings in this respect, including rules concerning the suspects’ access to evidence against them, as well as practical problems limiting the capacity of the defence to cross-examine and summon witnesses and experts. He also voices concerns about the use of secret witnesses and suggests a more effective judicial scrutiny when authorising ‘protective measures’, such as wire-tapping.
The Commissioner encourages the authorities to review the need for assize courts with special powers, owing to the severe restrictions to the rights of defence before these courts, by derogation from normal procedural guarantees.
Finally, he calls for further measures to affirm the independence of judges from the executive and to develop internal democracy within the judiciary.