LEGAL EAGLE’S PERFECTIVE ON HUMAN RIGHTS
Orhan Kemal Cengiz
Turkish Daily News, Turkey
April 12 2007
Are human rights reforms genuine?
No one doubts that Turkey has made serious progress in the human rights
field as a result of the harmonization process with the European
Union. But, some are questioning whether these reforms are genuine;
whether they only appear on paper or if they have serious effects
in practice.
To understand and analyze the reform process in Turkey, we need a
different paradigm. I believe that the reforms are not only genuine
but also have their impact in practice. Therefore, we need a new
question and it is this: whether the reform process is irreversible
or not? And, my answer is that they are not irreversible. Let me
explain this to you with two examples. The first example is torture.
Torture, since the Ottoman era, has always been the number one
problem in the field of human rights in Turkey. It was systematic and
widespread. In the last five years, we have experienced a dramatic
shift in this notorious practice. As a human rights defender, it
was not possible for me to imagine that a terror suspect was taken
into custody and brought before a judge without having experienced
torture. Today, this happens. I am not saying that the practice of
torture has totally stopped. What I am saying is that Turkey has
taken huge steps in this regard and the situation is not comparable,
let us say, with the situation five, 10 years ago. But, the question
remains: is this an irreversible situation?
Not only in this area but also in other problematic areas in the
field of human rights, Turkey has taken very important steps but not
ones that will make all these steps final and irreversible. Let us
look at another controversial issue. As you probably know, minority
foundations[1] in Turkey have long been suffering from a lot of
problems but especially from those related to their property rights.
As a result of the interpretation of the laws by the Appeal Court
(I will not go into the details in this article but I will discuss
these matters later on in detail), minority foundations lost a lot of
real estate that they had acquired after delivering their so-called
"1936 declarations" to the General Directorate of Foundations. Turkey
has also taken important steps in solving these problems but again it
has not taken the steps that will finalize this process. Of course,
it was important to allow these foundations to acquire new property
(which was not possible before as a result of the judgment by the
Appeal Court) but Turkey has not opened the way for these foundations
to regain the properties that were taken from them previously.
Regarding torture, stopping it is important but to eradicate it forever
you need to punish those who carried out the torture. Without tackling
impunity, you cannot really fight against torture. That monster can
reawaken at any moment. This is what we cannot see. Zero tolerance,
as it is named by the government, cannot be achieved without bringing
the torturers to justice. Likewise for the minority foundations, the
final step in solving their problem would be giving them back their
properties that were taken from them in an unjust manner. I hope
Turkey will take these finalizing steps in the reform process. But,
I believe it will either take these steps on its own initiative
or it will be forced to take them. Half-formed reforms will not
be tolerated as is indicated by the European Court of Human Rights’
judgment, delivered at the beginning of 2007, in the case of Fener Rum
Erkek Lisesi Vakfi v. Turkey, in which Turkey was ordered either to
re-enter the foundation’s forfeited property into the land registry
or to pay 890,000 euros to the applicant in pecuniary damages. It is
high time for Turkey to take these finalizing steps. Q & A Legal aid
system in Turkey
Today, I would like to give you some information about the Turkish
legal aid system and what it possibly means to you. Legal aid is the
support provided by the government to those who cannot bear the costs
of a trial because of their economic situation. It benefits Turkish
citizens greatly, but I do not know whether foreigners in Turkey use
this system for their legal matters. For foreigners, there is an extra
criterion that if they want to use this resource, their country must
provide this same resource to Turkish citizens. This is known as the
reciprocity criteria. In Turkey, legal aid can be obtained for all
civil, commercial and administrative disputes. The application can
be made though the court or the bar association. Your application
should also include a certificate of insolvency given by either the
local municipality or the Muhtar in the district in which you live.
If you qualified for legal aid, it will provide:
-Temporary exemption from court charges, execution charges and all
expenses of the case concerning ancillary expense such as reports,
-Appointment of a lawyer without fee, -Temporary exemption from stamp
costs and money collected by government agencies or other public
institutions and notary public -Temporary exemption from notification
costs. -Exemption from giving guarantees.
In addition to the Turkish Civil Code of Procedure, legal aid is
regulated by the Code of Attorneys. According to Article 95/11 of
the aforementioned Code, establishment and management of a legal
aid office is one of the obligations of the Board of Directors of
Bar Association. According to Article 176 of the said Code, in every
region where a court of First Instance exists and the number of the
lawyers is more than five, a legal aid office has to be established
under the control of a lawyer appointed by said board.
The duty of this office is to appoint a lawyer to those who seek legal
aid as well as to render a Court decision regarding providing legal
aid. (Article 178) Thank you for reading the first segment of "A Legal
Eagle’s Perspective on Human Rights in Turkey." See you next week!
[1] The term minority foundations are the ones operating under
the provisions of the Lausanne Treaty (1923) and they include the
foundations Jewish, Greek Orthodox and Armenian populations.