Opening Conference of the Joint Project on Supporting the Individual Application to the Constitutional Court in Turkey

Ankara, 1 March 2016

Mr President, dear Mr Arslan,

Esteemed and honourable Judges and Prosecutors,

Excellences, Ladies and Gentlemen,

It is a great honour and a real pleasure for me to be here today in Ankara for the Opening Conference of the European Union/Council of Europe Join Project on Supporting the Individual Application to Constitutional Court in Turkey.

Since 2010, The Council of Europe has been working closely with the Turkish Constitutional Court to establish an individual application mechanism. This has been done under the Joint Programme on EU/CoE “Enhancing the role of the supreme judicial authorities in respect to European standards”. The Council of Europe has enjoyed successful co-operation with all high courts in Turkey.

We enhanced our efforts to support the effectiveness of the new remedy once it was introduced: two important conferences were held in 2014 in Strasbourg with the participation of supreme courts of other European countries, and in Antalya with the participation of high courts, first instance courts, lawyers and NGO representatives. We followed up with a comprehensive Needs Assessment which has brought us to our new project we are launching today  

Before going further, I would like to take this opportunity to warmly thank our donors, the European Union and the Turkish authorities for providing such generous funding to the undertaking of this new project. If I am not mistaken, this is the highest national contribution to such a project. Ownership and sustainability are key elements of the co-operation activities and this contribution is already a good indicator of the ownership and sustainability of the Turkish authorities and the Constitutional Court.

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As you know, the top political priority of the CoE is to make the Human Rights Convention system more effective at both European and national levels. The latest reforms boosted the Court’s capacity to rapidly deal with cases reaching Strasbourg. What is mainly at stake today is the capacity of member States to remedy violations at home. This challenge confronts all States and Turkey is not an exception. The success is contingent on the existence of effective domestic remedies. You know well the legal principle the Convention relies upon: no right without remedy.

Our member States repeatedly underlined the shared responsibility between the Court of Human Rights and the domestic legal systems. Our project is intended to boost the capacities of the Turkish system to tackle human rights violations rapidly and effectively at their source. This is what we understand under the principle of subsidiarity which underpins all the Convention.

Establishing the individual application system in Turkey was a very important step in this process: the Turkish authorities and the Constitutional Court have from the outset assumed their responsibility for implementing their human rights obligations at national level.

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What we see from the first three years of this process is that the system has been functioning well. The Turkish society has accepted the Constitutional Court as a protector of its rights and freedoms. The Court’s judgments on the length of pre-trial detention and proceedings, rulings on Twitter and YouTube bans, as well as the decision on the law on High Council of Judges and Prosecutors, echoed the case law of the Strasbourg Court in these first years of implementation. It is important now to make sure that future judgments will sustain the effectiveness of this remedy in Turkey. We wish every success to the Constitutional Court and its judges in fulfilling their crucial role.

Needless to say, the system is also facing challenges. Our Needs Assessment Report identified 3 main areas of concern to be addressed through the new project:

• The workload of the Constitutional Court, which may hamper the quality of judgments and further extend the duration of trials in Turkey;
• The level of awareness of Turkish society, especially legal professionals, of the individual application system and the fundamental rights and freedoms, which should be protected at local levels; and
• The position of other high courts in Turkey, which fear that the Constitutional Court might become a fourth instance and a higher court above them.

First challenge: the workload of courts is a serious problem not only for the European court in Strasbourg but also for national courts. Especially in Turkey, the excessive workload of high courts makes it impossible to deliver quality judgments in reasonable time, this issue of reasonable time making up around 80% of the applications both to the Strasbourg Court and the Constitutional Court in Ankara. President Arslan and other speakers this afternoon will probably give more information about this problem. 

Second challenge: the Needs Assessment Report pointed out the fact that judges and prosecutors in Turkey considered judgments of the Constitutional Court as individual judgments and not binding for all cases. The inability to apply the relevant case law on a day-to-day basis is largely attributed to insufficient judicial training. The Council of Europe, through this new project will ensure that the human rights training delivered is of good quality and adapted to the specific needs of legal professionals, including judges, prosecutors and lawyers. This would allow them to better consider the human rights perspective in their judgments or pleadings. Our flagship HELP Programme - the European Programme for Human Rights Education for Legal Professionals – contains the necessary tools to that effect.

Third challenge: the need to harmonise the case law of the Strasbourg Court, the Turkish Constitutional Court and other high courts and to guarantee their impact on first instance courts’ judgments. We cannot of course expect that every problem in the country will be solved by the high courts. Our project will also address this issue so as to make various courts respective roles and jurisdictions clearer: we are expecting that the guiding role of the Constitutional Court as a court of human rights in Turkey will further be adopted by the Court of Cassation and Council of State in their judgments as well; otherwise, it is not possible to establish a sustainable human rights protection mechanism.

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Ladies and Gentlemen,

The Project is precisely the forum which will help address all the issues I mentioned, in a spirit of co-operation.

The Council of Europe acts on the basis of a virtuous circle: standard setting, monitoring and cooperation. First, we set common standards for all member States, through the conventions which are binding for all States Parties; second, we monitor their implementation; and third, we offer co-operation whenever we can support the efforts of our member States to comply with these standards.

The Secretary General of the Council of Europe, in his second report on “State of democracy, human rights and the rule of law in Europe”, emphasised the need for democratic security, which is analysed in five pillars:

• efficient and independent judiciary;
• free media;
• vibrant, influential civil society;
• legitimate democratic institutions; and
• inclusive societies.

The picture varies from country to country in Europe but the report demonstrates that there are significant gaps in member States. Today, I would like to point out a few issues, which have been of serious concern for the Council of Europe.

Ladies and gentlemen,

Trust in the judiciary by society is of paramount importance for the establishment of the rule of law and a democratic society for which an independent and efficient legal system is a must. One can pass the best legislation, and establish all the institutions necessary for a democratic society but it does not automatically provide trust in the judiciary. The judiciary should not only be independent and impartial from government or other institution; the judiciary must also appear as independent for the citizens. Last year one of the top judges of Turkey mentioned that confidence in the judiciary had declined to 20% from around 65% in 2010. Lengthy trials, ineffective enforcement system and low quality judgments may well be some of the reasons. Indeed, the Court of Cassation has around 1 million pending cases and the Constitutional Court more than 20 thousand. What can be expected from Courts under these circumstances in terms of length and quality of justice?

Let me recall some statistics regarding the ECtHR. In 2011, before the start of the individual application the number of applications to the Strasbourg court was around 9300; this figure dropped dramatically, to around 2000 in 2014, once the individual constitutional application was established. However, we saw a dramatic increase in 2015 - applications to the Strasbourg Court increased to 3 200, up 60% on the previous year. This is a worrying good signal. Let us not forget that the effectiveness of the individual application system is scrutinised on the basis of its capacity to prevent well founded applications to Strasbourg.

Ladies and Gentlemen,

Another important point I would highlight relates to freedom of expression. Last October, at a Conference on Freedom of Expression in Strasbourg, President Arslan quoted from Jalaluddin Rumi: "man consists of thought, and the rest is nothing but flesh and bone". One can but only agree with this philosophical approach that every single human being needs the freedom of expression to fulfil themselves and “denial of this freedom will therefore infringe the essential nature of human beings” as President Arslan so rightly said.

Freedom of expression is not only a fundamental right on its own, but also a precondition for the realisation of other rights, such as right to freedom of thought, conscience and religion, the right to freedom of assembly and association, the right to vote and the right to education. It is central to these rights, and a necessary condition for tolerance, cultural diversity and living together. It is different opinions that help cultivate information and enable progress in societies. Therefore this notion should especially be under protection.

40 years ago, the Strasbourg Court stated that: "Freedom of expression...is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population." States should thus create an environment which allows for full participation in open debates, enabling everyone to express their opinions and ideas without fear, even if they are contrary to those defended by the authorities or by majority of the society.

Today, standards set by the Council of Europe, including the European Court, imply a number of essential features to ensure the conditions for the protection and promotion of freedom of expression and public debate, such as the safety of journalists; the independence, pluralism and diversity of the media and free­dom of expression on the Internet. 

The same principles apply to peaceful assemblies. As the European Court and the Venice Commission have repeatedly stated, peaceful assemblies may serve many purposes, including the expression of diverse, unpopular, shocking or minority opinions. States have to refrain from interfering with the exercise of the freedom of assembly, but also to provide adequate mechanisms and procedures to ensure effective exercise of those rights.

Finally, Ladies and Gentlemen, I would like to refer to the increasing number of horrific and despicable terrorist attacks that Turkey and the people of Turkey have suffered in recent months. The sympathies of the Council of Europe are with Turkey, and we fully support your country in your fight against terrorism coming from illegal and extremist groups. But we should keep in mind that while fighting against terrorism, it is the obligation of States and security forces to respect human rights and not to be the cause of any violations of such rights. Turkey has experienced very serious human rights violations caused by the security forces in 1990s, which we hope not to see again. And any resurgence of acts, that are not only in breach of the very basic fundamental rights, but that also cause deeper divides between various sectors of society, can only be harmful for Turkey in the long term. I am confident that the necessary measures will be taken by the authorities to give an effective investigation into reports of alleged violations of rights whoever they might be committed by, and to take appropriate measures in respect of the perpetrators, ensuring that those suspected of criminal activity are prosecuted, tried and duly punished.

Excellences, ladies and gentlemen,

I have refered to a number of difficult and serious issues that are relevant to many European countries. The raison d’être of the Council of Europe is to find common solutions to common problems and to prevent new ones through co-operation. Our project has been designed and will be implemented in that spirit.

Allow me to conclude by saying that implementing the European Convention on Human Rights at national level is not only the responsibility of the Constitutional Court. It is a joint responsibility and all members of the judiciary at all levels to be aware that they have a key role to play in this regard together with the Constitutional Court. The Council of Europe stands ready to support you in this challenging but rewarding venture.

I wish you a fruitful Conference.

I thank you for your kind attention.