Strasbourg, 1 February 2006

CCJE/REP(2006)7
English only

Consultative Council of European Judges (CCJE)

Questionnaire on “ The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of Turkey

Preliminary remark

Questions under sections A-C hereafter should be answered by respondent delegations not only taking into account the problems relating to the role of the judge in the context of terrorism, but from a more general point of view. Questions under section D, on the contrary, are specifically aimed at dealing with the role of the judge in the context of terrorism.

A. Availability of information and documentation on all international legal instruments relevant to judicial activities (point IV (d) of the framework action plan)

If a country's judges are to be at home in a European and international context, that country must, beyond the uncertain substance of the iura novit curia principle, do everything to ensure that its judges can gain a full understanding of the relevant European and international reference texts, enabling them to perform their activities under the best possible conditions.

In this connection, it is important that appropriate initial and in-service training schemes should be run for judges on international subjects in both basic and specialist areas of knowledge. Judges should also have access to paper or electronic versions of legal instruments, so as to permit documentary research in the European and international legal spheres. Lastly, encouragement should be given to appropriate measures - including the allocation of grants - aimed at teaching judges foreign languages as part of their basic or specialist training and ensuring that each court has legal translation facilities, without any consequent increase in the length of proceedings.

Questions

A.1. Does your country have schemes to provide judges with initial and in-service training in international and European law? If it does, please provide a list of those schemes, specifying the subjects dealt with over the last year. Please indicate the number of judges concerned by these schemes, distinguishing between initial and in-service training, and the total number of judges in your country.

Answer A.1.

A lecture on “European Union” is taught during the initial training of judges every term. This lecture consists of some important features of EU including “History of European Union and its Structure”, “Sources of EU Law”, “EU Institutions” and “Implementation of EU Norms”.
As to the in-service training, 3 seminars on
- International Legal Cooperation in Civil Law for 100 judges,
- An Introduction to EU Law for 100 judges and
- International Criminal Law for 150 judges are scheduled for 2006.

A.2. Do all judges periodically receive full information on recent legislation and case-law at the European and international levels, without it being necessary for them to perform their own research in these matters? If they do, please indicate what types of documents are sent direct to each judge by the national authorities (e.g. official gazettes, legal periodicals). Please also specify what information is available on paper and what is provided in electronic form (CD-Rom, for instance).

Answer A.2.

In order to provide information on internal law issues and recent national legislation and case-law is sent weekly to all judges by the Ministry.
This periodical is available in electronic and paper versions and contains recent decisions of ECHR.

A.3. Do judges have an opportunity to attend foreign language courses? Are these courses free of charge or state-subsidised? Does each court have legal translation facilities?

Answer A.3.

Judges have an opportunity to attend foreign language courses some free of charge and some with a 40% contribution of the participant.
In this connection during 2005, 182 judges and public prosecutors had the said opportunity. In addition, 60 judges and public prosecutors are attending free of charge English courses in various private universities.
Courts do not have legal translation facilities though they have the legal documents translated by sworn translators if need be.

B. Dialogue between national and European judicial institutions (point IV (c) of the framework action plan)

For all national courts, the European Court of Human Rights and the Court of Justice of the European Communities serve as a reference regarding interpretation of a uniform European body of law. National courts have been delegated jurisdiction for administering European law since they are required, firstly, to apply it directly and, secondly, to interpret it in conformity with European standards.

To establish an effective dialogue between national and European courts, it is necessary that national judicial institutions should be the target of initiatives aimed at fostering not just the exchange of information but also, wherever possible, direct contacts between institutions.

Questions

B.1 What means does your country use to enhance dialogue between the national courts and the European courts? Please provide information on training dispensed in this connection over the last year.

Answer B.1.

Seminars:

      1. A seminar on Freedom of Expression by TAIEX held on 26-27 November 2004 in Antalya.
      2. A seminar which organised by United Kingdom and Ministry of Justice on Fight against Torture held on 02-03 December 2004 in Ankara.

Study visits:

      1. 34 judges and public prosecutors have attended a study visit to the International Institutions and Courts in Netherlands, Belgium, France and Germany on 03-13 October 2004.
      2. 5 judges and public prosecutors have attended a study visit in relation to the judicial police issue in France on 22-26 November 2004.

B.2. Does your country hold events bringing together the national courts and the European courts? Who participates in these gatherings? How are their results passed on, so as to enhance their reach?

C. Application by national courts of the European Convention on Human Rights and the case-law of the European Court of Human Rights, European community law and other international legal instruments (point IV (b) of the framework action plan)

Each country's application of the European standards depends to a large extent on the rank they enjoy in national law, including under the Constitution. Nonetheless, national case-law also plays a role since it is able to give interpretations adapting national law to European law, while upholding national constitutional standards.

A study is necessary to allow the CCJE to consider the most appropriate measures to be proposed to national courts in order to solve the problems encountered in this field.

Questions

C.1. In your country what rank do the following sources of law enjoy in the hierarchy of law in particular in relation to constitutional provisions and ordinary legislation?

a) the European Convention on Human Rights (ECHR)
b) EU treaties
c) the case-law of:

    - the European Court of Human Rights
    - the Court of Justice of the European Communities

d) international treaties.

Please cite the relevant constitutional provisions or case-law.

Answer C.1.

According to the paragraph 5 of Article 90 of the Constitution of the Republic of Turkey which provides:

      “International agreements duly put into effect bear the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”

international treaties becomes internal part of the national legal system upon ratification and are directly enforceable under Turkish law.
In this connection, where international treaties are considered as a part of Constitution, European Convention on Human Rights is in a higher position regarding to the hierarchy of law within the Turkish legal system.
As Turkey is not yet a party to the EU, the EU treaties and the case-law of Court of Justice of the European Communities are not relevant for the moment.

C.2. Does your country's case-law recognise the value - at least for interpretation purposes - of Council of Europe recommendations and resolutions?

Answer C.2.

Yes.

C.3 If the European Court of Human Rights were to hold that certain provisions of your country's legislation violate the ECHR, would your national courts be permitted not to apply those provisions? Apart from execution of the Court's judgments by the government, do the national courts have authority to prescribe their own measures implementing the Court's decisions?

Answer C.3.

No.

C.4. Where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision, are the following remedies available in your country before a possible application to the Court in Strasbourg:

- a direct application for reopening of the proceedings?
- lodging of a claim for compensation?

Answer C.4.

There are no such remedies in Turkish legal system.

Please specify whether national law affords solutions of this kind which are solely confined to certain violations of the ECHR, such as legal proceedings which have breached the reasonable time requirement.

No such remedy is available in the Turkish legal system.

D. The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism

Since 1949 the Council of Europe has been committed to safeguarding human rights, the rule of law and pluralist democracy.

Terrorism is a denial of these three fundamental principles, and the Council of Europe has produced a number of conventions aimed at combating terrorism while seeking to uphold human rights.

Questions

D.1. Has your country incorporated the Council of Europe recommendations and resolutions in its legislation or taken special measures to distribute and publicise these instruments?

Answer D.1.

Yes.

D.2. Has your country adopted substantive and procedural measures specifically applicable for cases where a suspicion about terrorism exists? Please describe what is the role of the judge in the proceedings in this type of cases and indicate in what way his or her role in this case is different from his or her role in ordinary proceedings.

Answer D.2.

Turkey, suffering from terrorism for two decades and as a member of the international community, is determined to fight terrorism and all kind of terrorist activities regardless of their cause and roots.

Turkey is well equipped with internal legal instruments required for the struggle against terrorism and also party to a number of bilateral and multilateral conventions on cooperation in the prevention of terrorism.

The internal legal instruments adopted in substantive and procedural context mainly include the Turkish Penal Code No. 5237, the Law on Fight Against Terrorism No. 3713 and the Turkish Criminal Procedural Code No. 5271 respectively.

    According to the above mentioned Laws, the judges may decide to conduct interception or recording or examining the records. Although the Public Prosecutors also have the power on these matters in cases where delay might impair seriously the proceedings, it is required to have a judge’s approval within 24 hours for this sort of activities carried out without a judge decision.
    Undercover operations and informants are used in order to gather information before commitment of terrorist acts. Law enforcement bodies take the advantage of information given by the informants before both the commitment and planning of the act.

Turkish specialized aggravated felony courts have the jurisdiction to deal with terrorist acts violating the security of the Turkish State that are committed in Turkey and foreign countries by Turkish nationals.

Furthermore, the same courts exercise jurisdiction on offenses committed outside Turkey by Turkish nationals.

D.3 What means does your country use to reconcile the demands of security and of the protection of human rights in cases where suspicion about terrorism exists? Please indicate the measures taken, in particular in the fields of criminal law, administrative law, admission, exclusion and deportation of aliens, and preventive actions.
Can you quote some specific cases where the question about such a reconciliation was raised?

Answer D.3.

Personal liberty and security, privacy of individual life, inviolability of the domicile and freedom of communication are not only guaranteed but also limited with the constitutional provisions. To strike a fair balance between the demands of security and of the protection of human rights there are a number of provisions in the Constitution and the Turkish Criminal Proceedings Code. To this end;

    1. Secrecy of communication is fundamental, unless there exists a decision duly passed by a judge on one or several of the grounds of national security, public order, prevention of crime commitment, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a \written order of an agency authorised by law in cases where delay is prejudicial, again on the above-mentioned grounds, communication shall not be impeded nor its secrecy be violated.
    2. Privacy and protection of private life is also secured with the provisions of the Constitution: Unless there exists a decision duly passed by a judge on one or several of the grounds enumerated, neither the person nor the private papers, nor belongings, of an individual shall be searched nor shall they be seized.
    In these cases, the decision of the authorized agency shall be submitted for the approval of the judge having jurisdiction within 24 hours. The judge shall announce his decision within 48 hours from the time of seizure; otherwise, seizure shall automatically be lifted.
    3. According to Article 252, sub-paragraph 1/c of the Criminal Procedural Code, the competent judge in a terrorist act, taking into account of the demands of security and Turkey’s international human rights commitments, may decide hearing to be performed by one of the aggravated felony courts in Turkey to be able to ensure security. Discretion on this matter belongs to the judge.
    4. After being sentenced to heavy imprisonment for terrorist acts serving the sentence imposed, aliens are deported from Turkey and permanently and it is not possible for them to enter Turkey again. (Article 22 of the Law No. 5683)



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