Legal Eagle’s Perfective on Human Rights

statue of lady liberty holding the scales of justice
Thursday, April 12, 2007

Orhan Kemal Cengiz
ISTANBUL– Turkish Daily News

Are human rights reforms genuine?

No one doubts that Turkey has made serious progress inthe 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 amsaying 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 theTurkish 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 extracriterion that if they want to use this resource, their country must provide this same resource to Turkish citizens. This is known as the reciprocitycriteria. 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 oneof 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.