Contract Enforcement and Judicial Systems in Central and Eastern Europe Warsaw, Poland, June Turkey

Transcription

1 Contract Enforcement and Judicial Systems in Central and Eastern Europe Warsaw, Poland, June 2005 Turkey 1. What have been your country s (or territories) 2-4 most successful achievements in the area of judicial reform in recent years, and what were the main factors contributing to that success? MAJOR LEGAL REFORMS CARRIED OUT IN TURKEY INTRODUCTION Turkey is the only pluralist secular democracy in the Muslim world and has always attached great importance to developing its relations with both European countries and Muslim countries. In the relationship with the European Union (EU) point of view, 1999 is very important year for Turkey. The Council of the EU unanimously declared Turkey a candidate to join the EU at Helsinki Summit held on December From that date on, a comprehensive reform process started in Turkey to fulfil the EU s Copenhagen criteria, which is a precondition to start accession negotiations with the EU. In fact Turkey has ever since closely aligned itself with the West and is a founding member of the United Nations as well as a member of NATO, the Council of Europe, the OECD. As the complete overhaul of basic legal codes such as the Penal Code, the Criminal Procedural Code, the Press Law, the Law on Associations and so on was a lengthy legislative process that could have taken years, Turkey chose to redress its shortcoming vis-à-vis the political criteria as quickly as possible through harmonization packages. During the reform process, a harmonization package came to be the term of reference for a draft law consisting of a collection of amendments to different laws, designed to amend more than one code or law at a time, and which was approved or rejected in a single voting session in Parliament. Together with the harmonization packages and individual laws, very important Constitutional amendments also were carried out by the Parliament after Helsinki Summit. I- CONSTITUTIONAL AMENDMENTS Total 49 articles of the Constitution, which is almost one-third of the 177 articles of the Constitution, were amended between the period within the framework of the harmonization to the EU, in compliance with contemporary standards and principles. These amendments, which have broadly political basis for the EU membership of Turkey, introduced new provisions in line with the priorities of the Turkish National Programme for the Adoption of the Acquis. The amendments made in 2001 are in regard to: - proportionality principle, - the freedom of thought and expression, - the prevention of torture, 1

2 - strengthening of democracy and civilian authority, - the freedom and security of the individual, - the right to privacy, - the inviolability of the domicile, - the freedom of communication, - the freedom of residence and movement, - the freedom of association, - the right to fair trial, - the equality of spouses in the family, - reducing detention periods and immediate notification to the next of kin, - the principles on the dissolution of political parties in line with Venice Commission Decision, - not being evidence of illegally obtained findings before court, - strengthening the civil aspect within the National Security Council, The amendments made in 2004 are in regard to; - the equality between man and women, - further strengthening the freedom of press, - total abolition of death penalty, - surrender of the citizen to the International Criminal Court, - priority of the conventions on human rights over conflicting national legislation (with the recent Law on the Amendment of Some Articles of the Constitution of the Republic of Turkey numbered 5170, entered into force May 5, 2004, the following phrase is added to the last Paragraph of Article 90 of the Constitution of the Republic of Turkey: In case of a conflict between the laws and international agreements duly put into effect in the field of fundamental rights and freedoms due to different in provisions on the same matter, the provisions of the international agreements shall prevail., - more reduction on the competence of National Security Council, - scrutiny of the Armed Forces possessions by the Court of Auditors, - abolition of the State Security Courts. - II- MAJOR LEGAL AMENDMENTS MADE WITHIN THE FRAMEWORK OF THE HARMONIZATION TO THE EU (HARMONIZATION PACKAGES) A- The First Harmonization Package The first harmonization package entered into force on February 19, Articles 159 and 312 of the Penal Code, Articles 7 and 8 of the Anti-terror Law, Article 16 of the Law on the Establishment of and Proceedings at the State Security Courts *, Articles 107 and 128 of the Code of Criminal Procedure were amended to expand the scope of the freedom of expression. In addition to this, the pre-trial detention periods were aligned with international standards. * Later State Security Courts were abolished wholly. 2

3 B- The Second Harmonization Package The second harmonization package entered into force on April 9, In order to enhance the exercise of the freedom of expression, association and peaceful assembly, this package amended the Press Law, the Law on Political Parties, the Law on Associations and the Law on Meetings and Demonstration Marches, the Law on Civil Servants, the Law on the Establishment of and Proceedings of State Security Courts and the Act on the Organization, Duties and Competences of the Gendarmerie and the Act on Provincial Administration. Particularly, the amendment in the Law of Civil Servants ensured to recourse to the compensation paid by the state in compliance with judgments of the European Court of Human Rights against personnel responsible for cruel, inhuman or degrading treatment. C- The Third Harmonization Package This package entered into force August 9, The death penalty, not executed in Turkey since 1984, was abolished in line with Protocol 6 to the ECHR except in time of war, the imminent threat of war and terrorism. The amendments to the Law on the Establishment of Radio and Television Enterprises lifted the restrictions on broadcasting and teaching in the different languages and dialects traditionally used by Turkish citizens in their daily lives. The Code of Civil Procedure and the Code of Criminal Procedure were amended to allow for retrial in light of the decisions of the European Court of Human Rights for civil and criminal cases. Additionally, various amendments were made to harmonize Turkish legislation with EU standards including, the amendments in the Law on Associations, Law on Free Zones, Law on Meetings and Demonstration Marches, Press Law and Law on Foundations and the Decree on the Organization and Duties of the Directorate General of Foundations. D- The Fourth Harmonization Package The fourth harmonization package entered into force on January, 11, The permission procedure for prosecution of civil servants and other public employees for allegations of torture and mistreatment have been abolished. According to new amendments, the imprisonment sentences for torture and mistreatment cannot be converted into fines or any other measures and cannot be suspended. The restrictions on the establishment of the associations and their abroad activities, have been narrowed and the bureaucratic procedure for the acquisition of property by community foundations has also been simplified. The procedure of closure of political parties has been complicated and the sanction of, depriving political parties partially or fully of state aids, has been adopted as an alternative to closure. Some new provisions have been introduced on minors that further enhance the rights of the child in accordance with the UN Convention on the Rights of the Child. New Provisions have been adopted with the scope of expanding the use of petition right of Turkish people as well as foreigners. E- The Fifth Harmonization Package The fifth harmonization package entered into force on February 4, This harmonization package includes amendments to the Code of Criminal and Civil Procedure concerning retrial on the basis of European Court of Human Rights decisions. F- The Sixth Harmonization Package The sixth harmonization package which entered into force on July 19, 2003 has abolished the death penalty except in times of war and imminent threat of war in line with the Protocol 6 to the ECHR. 3

4 Heavier sanctions have been imposed for the honour killings of children and honour killings. A number of amendments have been adopted regarding with the freedom of expression; and using of force and violence has taken place in the definition of terrorism. With the article 4 of the amendment, now it is possible broadcasting in different languages and dialects traditionally used Turkish citizens in their daily lives. The sixth package has also included amendments in the area of religions freedom and community foundations. The needs for places of worship of different religions and faiths have been taken into consideration with an amendment to Construction Law. The restrictions deriving from Census Law regarding with names an appropriate to the national culture and customs and traditions have also been abolished. Retrial has been adopted in Administrative Procedure Law, in the light of European Courts of Human Rights for administrative law cases. G- The Seventh Harmonization Package The seventh harmonisation package which came into force on August 7, 2003 introduced significant changes in the freedom of expression,freedom of association,right of prisoners,religious freedom, rights of children,cultural rights, civilian-military relations by a series of amendments enacted to the Penal Code, Anti-Terror Law,Code of Criminal Procedure, Law on the Establishment and Trial Procedure of Military Courts, Law on the Court of Accounts, Law on the Establishment, Duties and Trial Procedure of Juvenile Courts, Law on Associations, Civil Code, Decree Law on the Establishment and Duties of the Directorate General for Foundations, Law on Assembly and Demonstration Marches, Law on Foreign Language Education and Learning of Different Languages and Dialects by Turkish Citizens and Law on the National Security Council and Secretariat General of the National Security Council. Thanks to the amendment in Law on the National Security Council and Secretariat General of the National Security Council, duties and authority of the Council was revised and misinterpretations about its advisory role was prevented. Amendment in Anti-terror Law was aiming to draw a clear and definite border and to meet the criteria sought by the European Court of Human Rights adding the term of incitement to violence to the relevant article 7. However, propaganda which doesn t incite to the violence will not be considered as a criminal offence any longer. But propaganda which is including incitement to terror and other form of violence still remains as a criminal offence. Amendment in Law on Assembly and Demonstration Marches added to the article 17, as concrete condition, the presence of clear and present danger that the criminal offence will be committed, to reduce the postponements and banning of demonstration marches. Amendments in Law on the Establishment, Duties and Trial Procedure of Juvenile Courts changed the term of child elevating the age of childhood from 15 to 18 in order to remove exceptions in the jurisdiction of juvenile court. H- The Eighth Harmonization Package 8. harmonization package which was adopted July 14, 2004, mainly contains provisions which are aiming some modifications at civil military relations and death penalty. The main aspects of the new provisions are as follows: With the amendment of the Law on Higher Education, provision allowing for the selection of one member of the Higher Education Council by the General Staff was repealed. With the amendments of the Law on Establishment of and Broadcasting by Radio and Television Corporations, Law on Wireless Communication and Law on the Protection of Minors from Harmful Publications; application allowing the nomination of one member by 4

5 the National Security Council to competent boards which were composed by aforementioned laws was ended. With the amendment of various laws in compliance with the constitutional amendments, the death penalty has been abolished in all circumstances and replaced with aggravated life imprisonment. III- MAJOR LEGAL REFORMS OUTSIDE THE HARMONIZATION PACKAGES Legal reforms are not limited to the Constitutional amendments and the harmonization packages. Turkish Grand National Assembly approved 568 Laws between November 2002 and April Most of them are the laws prepared for the harmonization to the EU Acquis. Major laws promulgated within the framework of the EU harmonization process are in the following: - Turkish Civil Code (2002) The Turkish Civil Code, after 76 years application period, has been abolished and as a part of European Union integration process, a new Civil Code, which could meet the contemporary necessities, has been enacted in This Code comes into force in The new Civil Code includes very contemporary provisions especially in respect of family law relating to the gender equality, protection of weak persons and children. - Law on Family Courts (2003) This law lays down the establishment of family courts to deal with the family related cases like divorce, permission to marriage and so on. With this Law Juvenile Courts shall be established in districts with a population of more than inhabitants. - Law on Justice Academy (2003) This Law regulates the principles on the establishment and competences of Justice Academy. The main aim of newly set-up Academy is to increase the efficiency of judicial system by training judges, public prosecutors, judicial personnel, lawyers and notaries. - Law on Access to Information (2003) This law regulates the principles and procedures of the right to access to information. The right is granted to foreigners with some conditions. - Law on Electronic Signature (2004) This Law is based on the EU Directive on Electronic Signature. The aim of the law is to introduce provisions to regulate the legal and technical infrastructure for electronic signature, the essential component of electronic commerce as well as the e-state project to be implemented in the public sector, transactions related to electronic signatures and the activities of those providing the electronic certification services. - Law on Compensation of Damages Arose From Terrorism and Combating Terrorism (2004) This Law regulates the principles and procedures of the compensation of damages arose from terrorism and combating terrorism. It aims to compensate the damages of the victims of terrorism through agreement with the state without applying to the European Court of Human Rights. 5

6 - New Turkish Penal Code (2004) New Turkish Penal Code numbered 5237 is being regarded as a product of modern criminal policy. Moreover, this Code is expected to be an important legal reform which will lead the provisions and foundations in the field of fundamental rights and freedoms, democracy, rule of law and human rights to a stronger position in Turkey. Some of the improvements provided by this Code constitute an important step for Turkey s efforts to meet the EU s relevant criteria. This code will enter into force on June 1, Law on Establishment of the Intermediate Court of Appeals (2004) This Law regulates the principles and procedures of the establishment of the Court of Appeals. It is going to enter into force in June 2005 and all intermediate Court of Appeals will be established within 2 years from June While Turkish legal system was based on two - instance court system before this Law, after entering into force of this Law, three - instance court system is going to come into the Turkish legal system. - Code on Criminal Procedure (2004) The main aim of this law is to reach facts without violating human rights and to achieve the aim of establishment a judicial police system finding suspects from evidence under public prosecutors supervision. To shorten the period of trials, this Law introduces especially refusal of indictments, judicial police system, cross-examination system and conciliation system. Invitations of witnesses are arranged like European Human Rights Convention. As protection measures, new institutions and obligatory counsel system are established. This code will enter into force on June 1, Law on Enforcement of the Punishments and Security Measures (2004) This Law regulates the main principles, aims of execution and how imprisonment will be executed by taking into consideration human rights, equality and the aims of the enforcement. Moreover the Law has got the provisions on conditional release regime and probation. - Law on Misdemeanours (2005) The crimes considered as misdemeanours had been regulated by Turkish Penal Code before new Turkish Penal Code was approved on September After new Turkish Penal Code was approved, misdemeanours are regulated by Law on Misdemeanours ; and the punishments for the misdemeanours are transferred to the administrative fine rather than the judicial fine. IV- NATIONAL JUDICIAL NETWORK PROJECT NJNP (UYAP) Project will establish an electronic network and program development covering all Courts, Offices of Public Prosecutors and Enforcement Offices together with the Central Organization of the Ministry of Justice. The project has the objective of abolishing the use of written documents and typewriters. When the project is completed, the case shall be transferred to electronic environment starting from its petition to the court-house, repetitions shall be avoided, and the information gathered by the Office of the Public Prosecutor shall be available online during the trial stage. All stages, including the trial, sending to supreme courts, stages of Supreme Court of Appeals and State Council, return from the Supreme Court, conclusion, judicial decree execution and transmission to the Office of Records of Convictions will all be completed on this network. 6

7 UYAP has been planned in two stages: the central and the provincial organization. The central stage has the objective of automating the procedures of the central organization of the ministry and its subordinate units. It has been started as a pilot application for some courts and Supreme Court of Appeal. In the forthcoming years the remaining parts of the project shall be carried out. The criminal records kept by the General Directorate of Judicial Records and Statistics shall be reached by the competent authorities, on line or off line through LAN, WAN, internet, intranet, dial up connection, according to the local communication opportunities in a short while, and interrogation results about the case shall be transmitted to the database. The citizens shall be able to learn the dates of trials and judgment of similar cases from internet. In addition to National Judicial Network Project there are about 200 e-government projects of all sizes underway in Turkey. The main ones are: Accounting Offices Automation Project (say2000i), Central Census Management System Project (MERNIS), Internet Tax Office Project (VEDOP), National Police Network Project (POLNET), Government Supply Office's Electronic Sale Project (e-sale) CONCRETE IMPACTS OF THE LEGAL REFORMS The impact of the legal reforms on life in Turkey has been revolutionary. The first and immediate difference has been the start of an open debate on sensitive issues such as the death penalty, cultural rights and civilian-military relations. Today, Turkey is more open, more self-confident and freer than it was before The legal reforms changed existing legislation to improve human rights, strengthen safeguards against torture and mistreatment, broadened freedom of expression and freedom of the press, strengthened the freedom of association, assembly and demonstration, expanded cultural rights, reinforced gender equality and consolidated civilian democracy. As decided in the European Council in December 2004, Turkey has reached the immediate goal and will start accession negotiations with the EU on 3 December As the former EU Commissioner Responsible for Enlargement Günther Verheugen remarked on January 13, 2004, we [the EU] cannot just ignore the enormous progress made by Turkey. Turkey has achieved the critical mass necessary to be judge as having fulfilled the EU s Copenhagen political criteria. One should bear in mind that Turkey is an important country that has much to contribute to Europe in the political, economic, social and cultural area; and peace of the world. THE MAIN FACTORS CONTRIBUTING TO THAT SUCCESS - The integration process of Turkey with the EU - Domestic dynamics of Turkish society - Initiative of the new Turkish government and its decisiveness - Necessity of using technology in order to cope with workload. 2-What major problems do you currently face with regard to judicial independence and efficiency? - Judicial Independence The principle of the independence of the judiciary is enshrined in the Turkish Constitution but it is to a certain extent undermined by several other Constitutional provisions. The Constitution provides that judges and prosecutors shall be attached to the Ministry of Justice in so far as their administrative functions are concerned. Moreover, appointment, promotion, discipline and, broadly speaking, the careers of all judges and prosecutors are determined by the High Council of Judges and Prosecutors, which is chaired by the Minister of Justice and 7

8 of which the Under-Secretary of the Ministry of Justice is also a member. The possibility of removal and transfer to less attractive regions of Turkey by the High Council may influence judges attitudes and decisions. Furthermore, the High Council does not have its own secretariat and budget and its premises are inside the Ministry of Justice building. The High Council is entirely dependent upon a personnel directorate and inspection board of the Ministry of Justice for its administrative tasks. Judicial Efficiency Annually Total and Average Workload of Courts (Between ) - Generally In 2003, totally cases dealt by the 6120 functioning courts (except administrative courts) throughout Turkey with the average workload of 792. In 2002, 5912 courts dealt with cases with the average of 863 cases. According to these figures in 2003 the average workload of the courts decreased %8 percent as the result of increasing of the number of courts and decreasing of the filed cases. In comparison with 2001 the workload decreased %13 in In 2002, total number of cases dealt by 130 Administrative Courts and in 2003 same number of courts dealt with cases. Therefore, the workload per court increased from 2223 to 2313 in Criminal Courts The number of cases that the criminal courts dealt in 2002 was whereas this number decreased to in The number of the criminal courts increased from 2695 to 2762 in As the result of these facts average number of the cases per court decreased to 1021 whereas it was 1156 in According to these figures the average workload of the criminal courts decreased % 12 in comparison with 2002 and %20 with AVERAGE TRIAL PERIODS IN CRIMINAL COURTS (DAYS) State Security Courts Aggravated Felony Courts Criminal Courts of First Instance Criminal Courts of Peace Criminal Courts of Enforcement Traffic Courts Juvenile Courts TURKEY

9 Civil Courts In 2002 the civil courts dealt with cases whereas the number increased to in However as a result of increasing the number of courts from 3217 to 3358 in 2003, the average workload decreased from 616 to 604. These figures show the %2 decrease of workload in (See the annexed table-ii, for the detailed data) AVERAGE TRIAL PERIODS IN CIVIL COURTS (DAYS) Commercial Courts General Civil Courts of First instance Civil Courts Of Peace Labour Courts Land Registration Courts Civil Courts Of Enforcement Consumer Courts Family Courts TURKEY Number Of Judges And Public Prosecutors There are currently posts available for judges and prosecutors, of which have been filled and 659 remain open. The statistics shows that there are 3703 courts in Turkey except administrative courts. According to advisory decision of High Council of Judges and Prosecutors there must be at least 368 felony courts, 1047 basic criminal courts, 497 peace criminal courts, 76 juvenile courts, 1092 basic civil court, 359 peace civil courts, 161 labour courts, 959 civil courts of enforcement and 277 commercial courts throughout Turkey. In that respect currently 2458 new courts should be established. Judicial accountability Judicial independence does not mean a lack of accountability in Turkey. Judges and prosecutors can be impeached. Moreover, in Turkey s judicial system, High Counsel of Judjes and Prosecutors may remove judges for cause such as incapacity or conduct that reduces respect for judiciary. High Counsel have no power over Supreme Court Judges. According to Law On Compensation For Unlawfully Arrested And Detained Persons state has a responsibility of compensation for people who are arrested and detained unlawfully. There used to be no recourse process in this Law for judges and prosecutors. This Law dates back year In the framework of reform project New Criminal Procedure Code brings recourse process in Turkish Judicial System. Judges and public prosecutors also have civil liability besides criminal liability. They can be sued because of their partial behaviours, decisions (verdict) explicitly contrary to law, when they refrain from exercising their judicial duties, etc. 3-What ıs your top prıorıty ın the comıng year for ımprovıng the judıcıal system? How do you plan to address thıs prıorıty - Dissemination of UYAP Project whole country - Reaching EU standards concerning judicial effectiveness 9

10 - Training of Judges and Public Prosecutors in order to enforce judicial reforms - Adoption of Draft Commercial Code and Code of Obligations - Establishment of Intermediate Courts of Appeal. Establishment of the Courts of Appeal will substantially reduce the case load of the Court of Cassation and enable it to concentrate on its function of providing guidance to the lower courts on points of law of general public importance. - Increasing the number of the specialised courts - Transferring some administrative duties of public prosecutors to administrator staff 10