Ceren ÖZBEK
Translated by: Mehmet Faruk KOÇAK
Overall:
“Especially after the end of WW2, the notion that people having innate, indispenseble and inalienable rights which are beyond states’ claim, and that states have a duty to recognise and improve these rights, revived. Thus, new perspectives regarding the issue began to be sought out.” In this context, the Council of Europe was founded in order to uphold the human rights, democracy and rule of law all over the Europe. [1] In order to achieve this crucial goal, The European Convention on Human Rights (ECHR) was signed by members of The Council of Europe, including Turkey, in 1950. Hereby, protecting fundamental freedoms of not only the citizens of the signatory states but also whole humanity was envisioned through forming a structure with viewing from the perspective of peace and justice and hinging on a democratic regime that takes its roots from a common mentality. ECHR came into force in 1953.
ECHR is the most comprehensive convention in the field of international human law and served as a model to regional conventions such as American Convention on Human Rights and African Charter on Human and Peoples’ Rights. In order to oversee implementing of the rights which are protected in the convention, an internationally recognised court was founded in Strazburg, France. The court has gave over 12.000 verdicts concerning violations of civil and political rights over the applications in form of either individual or inter-state as its judicial activity goes on.
With the provisions set out in the convention, individuals seized the opportunity to defend their rights against the state. This court, ECHR, is the judicial body of the Council of Europe and its verdicts are binding, which means signatory states obliged to implement those decrees (ECHR, Article 46). [3]Frequently, these verdicts aim at amending states’ regulations and altering practices in regarding context. This authority was given to ECHR by the members of The Council of Europe.
With regard to maintain the peace and justice and to protect the fundamental rights and freedoms in the World, a bunch of bodies/conventions were constituted such as “Court of Justice of the European Union”, “International Court Of Justice”, “The Universal Declaration of Human Rights”, “The EU Charter of Fundamental Rights” and the efforts are continuing in this respect. Though it is important not to mistake these foundations with each other.
Structure of the ECHR:
According to the provisions set out before the Protocol No:11 (01.11.1998), control system of the convention was consisted of two phases. Those were, firstly, preliminary examinations that were made by “European Commission On Human Rights” (hereinafter referred to as Commision) and secondly, the verdicts that were given either by “The European Court Of Human Rights (hereinafter referred to as the Court)” or “The Committee of Ministers (hereinafter referred to as the Committee)”. Those bodies controlled contracting states if they breached one or more of the human rights provisions.[4]
Nevertheless, because of the increasing numbers of applications by signatory states, a new protocol was signed in order to achieve an efficent judgement and speed up the progress of the proceedings towards acceptable levels. Said protocol (Protocol No:11) was came into force in 01.11.1998 and it has changed structure of the Court as it has became a full-time institution with it. Also, Committee’s jurisdiction passed on the Court and it merely retained the function of overseeing the contracting states. Before the protocol, if applications that had been accepted by the Committee were considered as violation of convention by The Committee of Ministers, cases would be solved through paying damages without a Court hearing.[5]
With Protocol:11, auditing body of the convention has gained the form of a court. The new Court was consisted of three sections; “committees of three judges”, “committees of seven judges”, “grand chamber”. However this structure has been altered with the article 26 of Protocol:14 and those sections became units with one judge in order to reduce work load. Pursuant to ECHR Article 20, the Court consists of an equal number of judges in respect of the number of parties to the ECHR. Therefore as there are 47 signatory states, 47 judges serve in the Court. Judges are chosen among the experts in their field who are believed to act in line with the principles of independence and impartiality during their term of service. This choosing is made by the Parliamentary Assembly of the Council of Europe, which is the negotiating and decision-making body of the Council of Europe, from a list of three candidates submitted by each signatory to the ECHR. However, judges shall be elected for a period of nine years in accordance with the new form of Article 23, which has been amended by Protocol No. 14, which entered into force on 1 June 2010, and cannot be re-elected. A judge cannot be dismissed unless it is a decision taken by two-thirds majority of other judges that indicates the judge no longer holds the necessary conditions for the rule.
The judge, in the existing order, shall does not examine any application made against to the party which he/she is elected (Article 26/3). On the other hand, the judge elected in the name of the state which has been applied against, is a “natural member” in the Chamber or Grand Chamber (Article 26/4). The Grand Chamber shall also include the president of the court, vice-presidents, presidents of the chambers and other judges to be determined in accordance with the internal regulations of the Court. When a case of a chamber is sent to the Grand Chamber in accordance with Article 43, no member of the Chamber may be present in the Grand Chamber, other than the President of the Chamber and the “natural member” of the Chamber.
The Functioning Of The ECHR:
The ECtHR has introduced a judicial protection system concerning the rights covered. The court’s jurisdiction is determined by articeles 33, 34, 46 and 47. There are two ways to apply to the Court for a State’s violation of the ECHR: “The inter-state application” and “Individual application”. Each of the contracting states may apply to the Court against another signotary state alleging a violation of the human rights. In addition to this, within the framework of the amendments to Protocol 11 to the ECHR, individuals whose fundamental rights and freedoms are violated by a contracting state my apply against that state in the form of individual application. Individuals are not entlitled to apply as a third party for situations without direct impact to them.
The ECHR accepts applications not only made by real persons, but also by legal entities such as associations, foundations, companies, or in some cases, communities of persons without legal entity. It is not necessary for the applicant to be a citizen of the state to which he/she applies. For instance, a person who is a citizen of State X may apply against State Y. However, the State which the application is made against, must be a contracting state. The text of the application may be in the language of one of the Member States, although the court’s language of jurisdiction is English and French.[6]
Another novelty brought with the new system is that a state or person who has proved his interest in the case, can be asked to give an opinion on the case.The state, which the party to the case has citizenship in, has the right to express its opinion in the hearings which have been decided to be held publicly. The audience shall be free to observe the hearings and record them if they wish, and all the information related to the case will also be available to the public.[7]
In order for an individual to apply, first, the subject of the complaint must be related to the ECHR or to the violation of fundamental rights and freedoms which set forth in the additional protocols. The number of applications made on the basis of the rights that are not included in the ECHR and therefore rejected is quite high. However, it is important to note that the Court can enlarge its interpretation in terms of these rights.[8]
On the other hand, in order to improve the domestic legal systems of states before a person applies, a system that stipulates to seek rights in the domestic legal order before applying to ECHR was introduced. In other words, it is necessary to “exhaust domestic remedies” and a negative decision must be taken in this regard. The Court may be applied in writing within a period of six months from the date on which the final decision was taken. These two conditions are “admissibility” conditions, which are examined by the single judge, committee or chamber for either inter-state or individual applicants. There are also admissibility conditions to be considered only for individual applicants: the petition must be signed, the subject of the application must not be dealt with neither in the Commission nor other international institutions in terms of merits, the application must be related to the rights set forth in the contract and must not be manifestly ill-founded, and finally application must not be considered an abuse of the right of application.[9]
If an application do not meet certain requirements set out in the Convention, then ECHR will be reject it and this verdict is named “the declaratıon of inadmissibility”. If the applicant fulfils the conditions of the acceptability mentioned above, the ECHR holds that the applicant is acceptable and this is called “the declaratıon of admissibility”. It should be emphasized that the declaratıon of admissibility does not conclude the application, it means that the application has the essential preconditions and is worthy of judging on merits. [10]
After passing these phases, judgement on merits begins. This examination shall be carried out by committees of three or seven judges. However, the application may be rejected at any stage of the proceedings by the court if some of the requirements appeared to be not met. In order the Court to strike an application out of the list certain requirements have to be met including but not limited to following terms; the applicant must agree to withdraw his request, a confidential friendly settlement must be executed between parties to dispute and the Committee or Chamber must reaffirm that this resolution is an agreement based on the principles of human rights, The court must arrive at a conclusion that the applicant’s intention is not to pursue the case against the defendant state. The chambers judge cases juristicially as they examine cases by reviewing them on their merits. [11]
If no conclusion has been reached through friendly settlement, the ECHR will continue to examine the case in terms of merits. At this point, if necessary, the court may hold a hearing in pursuance of conducting further investigation. Final judgement is delivered after all investiations on merits completed. If a state party to the case is considered to be not violated the convention, a verdict stating there is no violation is delivered. Otherwise, verdict of “non-violation” shall be given. The judgement of violation includes only a determination that the state in question violated a right set out in the ECHR and its additional protocols.
Besides, if the Court finds that there has been a violation of the Convention or the Protocols thereto, if necessary, awards just satisfaction to the injured party (Article 41). In this regard, the Court may condemn the State which has violated the ECHR to pay “compensation”. Violation decree does not cancel the action or process that caused the violation of the state concerned. The verdicts given after the judgement on merits can be re-examined within three months of the date of the provision, upon a request to submit the case to the Grand Chamber. If there is no such request, the decision shall be final. (Article 44/2-a,b). The case shall be examined by a “five-judge committee”, an organ of the Grand Chamber, if it gives rise to a serious problem concerning the interpretation or application of the ECHR and the Protocols thereto, or to establish a serious issue of general quality. (Article 43/2) As a result of these investigations, the request might be either be rejected declaring the case is not in that essance or might be sent to the Grand Chamber to be concluded with its decision (Article 43/3). The decisions of the Grand Chamber are “final” (Article 44/1). The Committee of Ministers of the Council of Europe shall examine the measures taken for the fulfilment of the provisions set out in ECHR, as well as the individual and general measures taken by the state to comply with the provisions of the Convention. (Article 46).[12]
The Impact of ECHR Judgements on Turkish Law:
The judgments of the ECHR do not affect domestic law by itself as we have stated above, nor does have the authority to cancel, modify or distort the proceedings in violation of the court. The defendant state shall take all the necessary measures in the fulfillment of this procedure, however, the State shall have the right to choose any way or method in this regard.[13]
In article 90 of the Constitution of the Turkey, international contracts’ legal status in the hiearchy of the norms has been identified in bold outline. As a matter of course, in the first sentence of the last paragraph of this article, “international agreements which came into force complying with the legal procedure are considered to be a provision of a code” and in the following clause, “the Constitutional Court can not be applied with the claim of contradiction to the constitution on these” expressions caused some disagreements in the doctrine. While some authors agree on the basis of the contract should be taken into consideration in case of conflict between international contracts and laws; some of them have regarded the provisions of the contract above the law or even the constitution. The best solution for reducing these conflicts is to bring the contract provisions into compliance with internal law. [14]
As a party to the ECHR since 4 November 1950, Turkey has been taking steps in the process that leads to a significant change in domestic law in terms of respecting for human rights and the adoption of the rule of law since 1990, in particular, by recognizing the right of individual application. The number of applications submitted to the ECHR, which has ensured significant changes in the implementation of Turkish law and legislation, has increased with each passing year according to the last decisions regarding Turkey, and issue of proceedings taking too long time has not been overcome with Protocol No. 11.[15]
The reflections of the judgments of the ECHR to Turkish law are, roughly, to hold enquiries to the officials who have committed crimes in pursuant to prevent violations to be repeated, to abandon a juducial opinion or to renew the trial, to instruct the state officials under the jurisdiction of the state, to amend the law that violates the convention. If a decision of restitution is itself sufficient to remedy the mischief, then that decision can be held in this direction, if not a monetary compensation can be paid and the violation can be remedied. [16]]
The Constitution of Turkey [1982] shows significant similarities with the ECHR in respect of fundamental rights and freedoms. On the other hand, between the year ECHR came into operation and the year 2013, decisions made about Turkey were much important issues such as the right to a fair trial, the right to property, right to liberty and security, issues regarding the length of trial and the prohibition of ill-treatment. Moreover the fact that at least one violation has been detected in 2639 of the 2984 judgments has shown that Turkey should make further efforts on human rights.
Epilogue:
The ECHR and the Court have brought the concept of human rights to an international level in pursuant to secure a common guarantee. As an unavoidable consequence of their continued existence for almost fifty years, the ECHR has undergone reform processes with various amendments, such as protocols 11 and 14, morover it continues to be altered day by day. In this context, through the amendments that are brought in order to reduce the workload of the Court and opportunity to apply the Court individually have increased Court’s binding decisions’ impact on daily life. More than 80 percent of the Court’s decisions are judged to be a violation of the ECHR. And more than half of the verdicts was handed down against four states: Italy, Turkey, France, and Russia.
In general, the parties have incorporated the conventional rules in their domestic law within two mentality, which are referred to as monist or dualist perceptions. Turkey has adopted the monist conception as a party to this Convention and has stated the convention’s legal status in its domestic law in certain regulations.[17] It is an undeniable fact that Turkey, which has made considerable efforts in the field of basic human rights through these arrangements, has a way of taking lessons from its mistakes in the light of the circumstances it has faced in the past and the events we have encountered in daily life.
BIBLIOGRAPHY:
BİLİR, Faruk: ‘’Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve 14 Nolu Protokol’’, AÜHFD, Cilt:55 Sayı:1, 200
CENGİZ, Serkan: ‘’AİHM Kararlarının İç Hukuka Etkisi’’, TBB Dergisi, Sayı:79, 2008
ÇİÇEK, Ş. Eda: ‘’Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Mahkeme Kararlarının Türkiye’de Yerine Getirilmesi’’
GÖZLER, Kemal: ‘’Anayasa Hukukunun Genel Esasları’’, 3.Baskı, Bursa: Ekin Basım Yayın Dağıtım, 2012
KARAASLAN, Erol: ‘’Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Yargılama Yöntemi’’, Ankara Barosu Dergisi, Sayı:3, 200.
FOOTNOTES:
[1] Erol Karaaslan, ‘’Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Yargılama Yöntemi’’, Ankara Barosu Dergisi, Sayı:3, 2004, s.107-108.
[2] Karaaslan, ‘’Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Yargılama Yöntemi’’, s.108
[3] Kemal Gözler, Anayasa Hukukunun Genel Esasları, 3. Baskı, Bursa: Ekin Basım Yayın Dağıtım, 2012, s.436.
[4] Ş. Eda Çiçek, Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Mahkeme Kararlarının Türkiye’de Yerine Getirilmesi, http://eprints.sdu.edu.tr/156/1/TS00322.pdf, Erişim Tarihi: 30.11.2014
[5] Faruk Bilir, ‘’Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve 14 Nolu Protokol’’, AÜHFD, Sayı:1, 2006, Cilt:55, s.136-137
[6] Gözler, Anayasa Hukukunun Genel Esasları, s.433-434
[7] Ş. Eda Çiçek, Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Mahkeme Kararlarının Türkiye’de Yerine Getirilmesi, http://eprints.sdu.edu.tr/156/1/TS00322.pdf, Erişim Tarihi: 30.11.2014
[8] Karaaslan, ‘’Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Yargılama Yöntemi’’, s.115-116
[9] Çiçek, Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Mahkeme Kararlarının Türkiye’de Yerine Getirilmesi, http://eprints.sdu.edu.tr/156/1/TS00322.pdf, Erişim Tarihi: 30.11.2014
[10] Gözler, Anayasa Hukukunun Genel Esasları, s.43
[11] Çiçek, Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Mahkeme Kararlarının Türkiye’de Yerine Getirilmesi, http://eprints.sdu.edu.tr/156/1/TS00322.pdf, Erişim Tarihi: 30.11.2014.
[12] Gözler, Anayasa Hukukunun Genel Esasları, s.435-436
[13] Karaaslan, ‘’Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Yargılama Yöntemi’’, s.124-12
[14] Çiçek, Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Mahkeme Kararlarının Türkiye’de Yerine Getirilmesi, http://eprints.sdu.edu.tr/156/1/TS00322.pdf, Erişim Tarihi: 30.11.2014
[15] Serkan Cengiz, ‘’AİHM Kararlarının İç Hukuka Etkisi’’, TBB Dergisi, Sayı:79, 2008, s.338
[16] Çiçek, Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Mahkeme Kararlarının Türkiye’de Yerine Getirilmesi, http://eprints.sdu.edu.tr/156/1/TS00322.pdf, Erişim Tarihi: 30.11.2014
[17] Çiçek, Avrupa İnsan Hakları Mahkemesi’nin Yapısı ve Mahkeme Kararlarının Türkiye’de Yerine Getirilmesi, http://eprints.sdu.edu.tr/156/1/TS00322.pdf, Erişim Tarihi: 30.11.2014
