Human Rights in Criminal Proceedings, 5 years after the Salduz case

The conference was opened by our Chairman Holger Matt, who made clear right from the start that it is a keen interest of the ECBA that not only the rights of the accused to a fair trial are of major importance for the rule of law, but especially that such rights also apply to criminal lawyers, who represent others. Holger Matt expressed his deep concerns that this rule of law is jeopardized by the latest developments in Turkey, as result of which numerous lawyers as well as journalists are in pre-trial detention for the mere execution of their professional duty.

The next speaker was J. Sadullah Ergin, the Turkish Minister of Justice, who gave his views on a right on a fair trial. He said that it is important for there to be harmony amongst the elements which comprise Society. There will always be disputes, but what matters is that these disputes are responded to properly. The Judiciary represents the final say and establishes the truth of the Law. Criminal Lawyers are inseparable guides for this work. The Objective is to make our way to the truth by complying with Procedural Laws. The truth is the agreement of the mind and the matter, and the process is the major method of reaching that agreement.

Mr. Ergin furthermore said that the right to a fair trial has a special importance, and everyone as enshrined in Article 6 has a right to a fair trial. It would be impossible not to grant fundamental rights: this is the Judicial dimension of Human Rights. Any country which fails to protect fair trial rights cannot expect to have a seat in the international arena. Turkey is a stakeholder in this international joint effort.

The minister proclaimed that the case of Salduz is a valuable example to show how things have changed in Turkey, and it has made a difference here. He was happy to say that the Salduz grounds have been met in legislation and practice. From his political point of view Turkey is pointed out as an exemplary model thanks to the political arena, more democracy, and the Turkish legal system gaining more ground.

He furthermore said that Turkey´s accession to the EU is an accelerating process, and that Turkey is rapidly performing. In 2009 Turkey announced a new Judicial strategy and action plan. In this Reform Strategy Turkey has: (i) enhanced its identification structure; (ii) improved its execution and enforcement system; (iii) made stronger Supreme Courts; (iv) put in place a better Constitutional Court. The Turkish system is now closer to continental Europe. Turkey is also improving its Probation service; prison inmates are able to spend more time with family members.

The minister made clear that Turkey is ambitious to cope with its deficiencies and is committed to libertarian and democratic policies to order properly to protect the fundamental rights of its citizens. Judicial reforms aim at catching up with Strasbourg’s decisions although the minister admitted that there is still a lot that has to be done. He said that Turkey has in relation to Subsidiarity created a Human Rights and an Ombudsman Institution and has taken steps to stop ongoing violations of Human Rights. Turkey is seeing results: up to 2011 Turkey was the number one provider of cases to the Strasbourg Court, but now up to 2012 it has been left to another country to take over that position, but Turkey is still number two.

Holger Matt, in his response to that speech, said that the ECBA will especially have a keen eye on the ongoing trial against defence lawyers (including the president of the Istanbul Bar Association). The minister made clear that he himself is displeased by this case, but recommended a look at the photographic images which are the grounds for the trial. The Judiciary has to take measures to ensure that Judicial Proceedings take place properly. Turkey will continue to improve and progress in the future.

These speeches were followed by Taru Spronken´s presentation of problems relating to the Salduz case, especially the right of a lawyer to be present during police interrogation. Spronken gave an overview of European legislation in this matter (directive on the right to access to a lawyer).

The next speaker was Murat Özsunay, who as a first introduction presented a brief history of the Turkish Republic. He then presented legislative reforms (regarding the law on criminal procedure as well constitutional law) that take place, but unfortunately did not give any insight into the wrong doings in daily practice although sometimes making critical remarks (regarding Terrorism-legislation, problems of the special courts, freedom of speech).

This was followed in the afternoon by a panel discussion, where Marion Isobel (Open Society Justice Initiative) gave an overview of the different national legislations in Europe, which have changed because of the Salduz case. Banu Kurtulan (Austrian lawyer) gave a very critical overview of the actual legal situation in Turkey at present and made clear that legal reform is a good thing but that daily practice in Turkey still means that arbitrary imprisonment as well as serious breaches of the ECHR is daily practice. This view was confirmed by Hacı Ali Açikgűl´s statement, who gave an overview of the legal situation in Turkey and made clear that the legal situation is good, but unfortunately not obeyed in practice. Vahit Bicak on the contrary claimed that, the case of Salduz happened a long time ago and that Turkey has undergone a clear change. The situation has improved since then. In regard to the freedom of speech he said that cultural differences have to be taken into account. Kerem Altiparmak said, that on the contrary the inconvenient truth is that still no recording of statements takes place in Turkish police stations, that still very many of abuses of powers by the police take place and referred to a case where an asylum seeker was killed by the Turkish police. He said that law on paper is good, but the practice still is not.

The conference was closed by several reports on working groups and projects. In the evening a boat trip on the Bosporus provided ample opportunity for international networking.

Report by Roland Kier