SECRETARIAT OF THE COMMITTEE OF MINISTERS
SECRETARIAT DU COMITE DES MINISTRES
Contact: Abel Campos
Tel: 03 88 41 26 48
1172 DH meeting (4-6 June 2013)
Action plan (09/04/2013)
Communication from Turkey concerning the case of Demirel against Turkey (Application No. 39324/98).
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1172 réunion DH (4-6 juin 2013)
Référence du point :
Communication de la Turquie relative à l’affaire Demirel contre Turquie (requête n° 39324/98)
OF THE JUDGMENT OF EUROPEAN COURT OF HUMAN RIGHTS
IN THE CASE OF DEMIREL V. TURKEY (39324/98, 28 JANUARY 2003)
AND THE JUDGMENTS SUPERVISED UNDER THE DEMİREL GROUP OF CASES
ACTION PLAN (9 April 2013)
I. CONTENT OF THE JUDGMENTS
1. There are 176 judgments in total that are supervised under the Demirel v. Turkey Group of Cases. In the judgments, the European Court of Human Rights (“the ECtHR”) held that there have been violations of Article 5 of the European Convention on Human Rights (“ECHR”) due to the lack of relevant and sufficient grounds in the decisions about detention on remand and objection to detention. Similarly the Court, as another important reason for the violations of Article 5, underlined that in the afore-mentioned decisions the alternative measures were not used properly. Furthermore, according to the Court, the excessive length of detention, the lack of an effective and adversarial objection remedy that has the chance of success against detention and that is in compliance with the principle of equality of arms and lack of an effective remedy for the demands of compensation, are the deficiencies that cause violation of Article 5.
2. Demirel v. Turkey (39324/98), the leading judgment of this group of cases, became final on 28 April 2003. The Committee of Ministers (the Committee) evaluated the Demirel Group of Cases at the DH meeting on 1-3 December 2009. The Committee stated in its assessment that the stereotypical grounds should be avoided in the decisions regarding the remainder of the detention and the rejection of the release demands, and in those decisions, the grounds should be sufficient and specific to the circumstances of the case. The Committee also stated that the Turkish Courts should take Article 90 of the Turkish Constitution into consideration, which enables direct implementation of the provisions of the ECHR.
3. The Committee stated in the abovementioned assessment that the ECtHR decided in some of its judgments that even the length of the detentions around 5 years were compatible with the ECHR. Moreover, it stated that the state of the evidence and the content of the file did not provide sufficient information as to the reasons justifying the detention. It also emphasized that the courts must justify their decisions of the detention on remand with sufficient grounds and must give information on what risks releasing the detained persons could cause at that stage of the case. On the other hand, it was stated that the alternative measures such as bailing or ban on leaving the country have not been sufficiently considered.
4. According to the Committee of Ministers, the Turkish authorities could not present an effective and adversarial remedy by means of which an objection to the detention could be filed.
5. The Committee assessed that Article 141 and the following articles of the Code of Criminal Procedure No. 5271 dated 2005 (CCP) provides a right to demand compensation. However, the Committee did not appear to be clear as to whether those articles fully cover the rights under Article 5 of the ECHR regulating the right to liberty and security. In this connection, a loophole was considered to have existed regarding paragraph 4 which regulates the right to object to the detention.
II. INDIVIDUAL MEASURES
6. 176 judgments are supervised under this group of cases which have been related to detention status of 274 persons in total. 178 of the 274 relevant persons have been released. The 96 persons who have not been released were convicted with court judgments. In this respect, there is no person that is now being detained on remand within the scope of the judgments supervised under Demirel group cases. Moreover, all of the compensation amounts awarded in these applications have been paid on time. Since all the applicants were either released or convicted and compensations were timely paid, the Government believes that there are no other individual measure to be taken for the execution of this group of cases.
III. GENERAL MEASURES
7. This action plan mainly presents the steps taken after 2009 regarding the issues examined under Demirel v. Turkey group of cases, such as excessive length of detention, lack of an effective remedy to object to the detention and the limited scope of the right to demand compensation, since the steps taken in Turkish Law between 2003 (when the ECtHR rendered the leading judgment in question) and 2009 were already assessed at the DH meeting in December 2009, the improvements between 2003 and 2009 are however briefly mentioned. While the first section presents the steps directly related to the deficiencies identified by the CM at its December 2009 meeting, the second section summarizes the general steps such as judicial reform strategy studies, training and awareness raising and project activities, which have had an eventual positive impact in improving the execution of Demirel group of cases.
1. Improvements as regards the right to liberty and security for the purpose of the Execution of Demirel Group of Cases
8. As mentioned above, this section summarizes the improvements in view of the problematic areas determined in the judgments examined under Demirel group of cases that fall within the scope of Article 5 §§ 3, 4 and 5 of the ECHR.
9. On 1 June 2005, the former CCP no. 1412 was abolished, and the CCP no. 5271 entered into force, which includes provisions more compatible with the standards of the ECHR and the ECtHR judgments with regard to detention on remand. In addition, Law no. 6352 entered into force on 5 July 2012, in which amendments were made to the new CCP of 2005, and thereby the standards concerning detention besides the other issues were further advanced.
Furthermore, with the adoption of the Juvenile Protection Law no. 5395, a person under the age of 18 has been defined as a “child”, and special protective provisions have been introduced in respect of them. In practical terms, especially with the recent judgments of the Court of Cassation, there has been an increase in the effectiveness of the relevant legislation.
1.1. Excessive Length of Detention on Remand (ECHR Art. 5§3)
10. In its many judgments, the ECtHR stated that stereotyped grounds were relied on in the decisions related to detention, detention on remand and rejection of the request for release in Turkish judicial practice. According to the Court, in the decisions in question no grounds were set forth that could be sufficient and that assess the circumstances of each case. In view of the ECtHR, to what extent the applicant's release would have posed a risk after the passage of time, in particular in the later stages of proceedings, were not indicated in the decisions. It was also stated that there were no examples of alternative measures such as release on bail or ban on leaving the country in many of the decisions.
1.1.1. Requirements for the Detention on Remand and Grounds
11. According to Article 104 of the old CCP, a person may have been detained where there was a strong suspicion linking him with a particular crime, under the following circumstances: 1) where there were facts indicating that the suspect planned to flee, 2) where there were facts indicating that the suspect was attempting to remove evidence or traces of criminal activities, or encourage his accomplices or witnesses to make false statements or refuse to testify, or to exert influence over the experts.
12. Article 100 of the new 2005 CCP however, instead of ‘to be suspected of intending to flee’ in a clear manner “to flee” and “to hide”, is stated as the grounds for arrest, one by one. Similarly, ‘to be suspected of intending to flee’ took place in the article as another ground for arrest. Here however, the existence of concrete facts is required.
13. In the same article also with respect to destroying, hiding or changing the evidence, putting an unlawful pressure on witnesses, the victims or other individuals; in particular the concept of “attitude” the scope of which is undetermined is not considered sufficiently, clearly indicates that the conduct of the suspect or accused must constitute a “strong suspicion”.
14. In Article 104 of the former CCP, the cases “where the suspect has no domicile or residence, or unable to identify himself” were provided as reasons for arrest. However, it was possible again to issue an arrest warrant including imprisonment up to six months for offences causing public indignation in case the suspect has no domicile or residence or was unable to identify himself. Contrary to this, the new 2005 CCP abolished all the conditions to issue an arrest warrant for the offences mentioned above. This enabled an objective arrest criteria to be applied to everyone.
15. In the new CCP of 2005, the offences that could be subject to an arrest warrant are restricted in Article 100/4 according to the minimum level of the imprisonment. The upper limit was increased from one to two years with Law No. 6352, which entered into force on 5 July 2012. Accordingly, if the offence requires an imprisonment up to two years, no detention decision shall be rendered. In cases where the offence requires only judicial fine, no detention decision shall be rendered either.
16. With regard to the restriction on rendering of detention decisions, the Juvenile Protection Law no. 5395, which was adopted on 3 July 2005, sets forth a special provision in respect of juveniles. Pursuant to Article 21 of the Juvenile Protection Law, for the offences that do not require more than five years imprisonment as an upper limit, a detention decision cannot be rendered for juveniles under fifteen. In the former Law No. 2253 on the Establishment, Duties and Trial Procedures of Juvenile Courts, the time limit to render a detention decision for the juveniles under fifteen years-old was three years. According to Article 31/1 of the Turkish Criminal Code, minors under the age of twelve are exempt from criminal liability. These minors cannot be prosecuted; however some security measures special for minors can be imposed. It must be underlined that the age limit in this respect was set out as eleven in the former Turkish Criminal Code.
17. According to Article 101/2 of the new CCP of 2005, detention decisions, and decision on rejection of the request for release, were required to be furnished with the legal and factual grounds and reasons. However, with a view to ensuring a stricter implementation of the article in question, it was amended with the abovementioned Law No. 6352. The last version of the article requires the clear indication of evidence, which reveals “strong suspicion of an offence”, “existence of grounds for detention” and “proportionality of detention measure”, basing it on concrete facts.
1.1.2. Length of Detention
18. In the former CCP, no maximum limit was set forth in terms of length of detention on remand for the offences requiring seven or more years’ imprisonment. Although in the ECtHR judgments no particular time-limit has been provided for detention on remand, legal arrangements, envisaging a time-limit, have been introduced with a view to meet reasonable time criteria.
In this context, in Article 102/1 of the new CCP of 2005, length of detention on remand has been restricted as regards each kind of offences. In this respect, where the crime is not within the jurisdiction of a criminal court of general jurisdiction, the maximum period of detention shall be one year. However, “if necessary”, this period may be extended for six more months by explaining the reasons. Where the crime is under the jurisdiction of an assize court, the maximum period of detention is two years. This period again may be extended by indicating “the reasons in necessary cases”, but the extension shall not exceed 3 years.
According to Article 10/5 of the Anti-Terror Law no. 3713, for the following offences: disrupting the unity and integrity of the state; destruction of military facilities and conspiracy which benefits enemy military movements; violation of the constitution; attempting, by use of force and violence, to abolish the Turkish Grand National Assembly or to prevent, in part or in full, the fulfilment of the duties of the Turkish Grand National Assembly; attempting, by the use of force and violence, to abolish the Government of the Republic of Turkey or to prevent it, in part or in full, from fulfilling its duties; armed riot against the Government of Turkish Republic; forming an armed organization in order to commit offences against State security or constitutional order, and governing the organization or being a member of it; providing arms for the armed organizations in question; enlistment of soldiers in foreign service without the permission of the Government; assassination of the President; and some crimes of violence committed in the course of the activities of a terrorist organization, the extension can be applied twofold.
1.1.3. Judicial Control
19. The Judicial Control Mechanism, which did not exist before 2005, entered into the Turkish law with Article 109 and following articles of the new CCP of 2005. Therefore, it has been made possible to reach the aims, by means of some alternative ways instead of detention measure.
20. The Law, sets forth the alternative measures as follows; a) a ban on leaving the country, b) to regularly make an appearance to the place(s) to be specified by the judge within the specified time periods, c) to obey the calls of authorities or persons specified by the judge and, when necessary, conform to the given measures of control with respect to the professional activities or of continuing education, d) a ban on driving any or some of the vehicles and, when necessary, leaving his driving license to the registry office in return for a receipt, e) to obey and accept the measures of medical diligence, treatment or examination, especially being hospitalized for purification from dependency on narcotics, stimulating or vaporised substances and alcohol, f) to submit monetary assurances as a safeguard, to be determined by the judge upon the motion of the public prosecutor, after taking into account the financial conditions of the suspect, and whether it shall be paid in advance or in instalments and the period of payment, g) not to be permitted to have or to carry weapons and, if necessary, to leave the guns to the judicial depositary in return for a receipt, h) to provide real or personal guarantee for the money to assure rights of the injured party; the judge upon the motion of the public prosecutor shall specify the amount and the payment period of the money, i) to provide assurance that he shall fulfil the obligations towards his family, and that he shall pay alimony regularly, pursuant to the judicial decisions.
21. Therefore, the judge has the judicial discretion to make a different preference other than release and detention on remand; thereby, “the principle of proportionality” has been made dominant over the protection measures, and the exceptional nature of detention measure has been strengthened.
22. In the first version of the new CCP of 2005; with the aim of adopting a judicial control measure, the upper limit of the imprisonment for the offence, the subject matter of the investigation or prosecution, had to be three years or less. With the amendment of Article 109/1 of the new CCP by the Law No. 6352, it has been possible to apply a judicial control measure for all offences irrespective of any upper limit of sentences foreseen. With the same Law, the alternatives for judicial control measures have been increased. Existing measures had included not abandoning the residence, not abandoning a particular residential district, and not going to certain determined places or areas. Accordingly, the opportunity of adopting a judicial control measure instead of detention has been made easier.
1.1.4. Judge of Liberties
23. With Law No. 6352 in force on 5 July 2012, Article 250 and the following Articles of the new CCP of 2005, which sets out the duties of the Public Prosecutor’s Offices and courts conducting the investigations and prosecutions regarding the organized crimes, were repealed. Amendments have been made in Article 10 of the Anti-Terror Law and new courts and public prosecutor offices and their jurisdictions have been determined over again. By means of the Article 10/3 (c) of the Anti-Terror Law, a judicial authority known as “judge of liberties” in practice has been established.
24. Judges have been assigned exclusively to examine the requests of detention and continuation of detention as well as search warrants and similar warrants of the Public prosecutors that are authorized with Article 10 of the Anti-Terror Law, during the investigation stage. Therefore, it has been ensured that the judges who examine and focused on the requests of detention would be different from the ones who take part in the prosecution stage for the relevant offences. In this way, it has been made possible for judges to assess the conditions of detention apart from the merits of the case.
25. Furthermore, with the last paragraph of Article 10 of the Anti-Terror Law, children of all ages have been kept out of the jurisdiction of the courts and public prosecutor offices authorized with the same article, and so children are no longer subject to longer detention periods.
1.1.5. Statistical data regarding detention
26. The positive impact of the afore-mentioned initiatives have begun to be set into practice and already includes a decrease in the number of detention decisions and the periods of detention and increase in the number of judicial control measures. It is expected that the positive impacts in question will be seen more concretely in the near future. The relevant statistical data on this issue has been dealt with below.
a. General Practice
27. In spite of the increase in population, in the numbers of offences committed and in the criminal proceedings every year; the rate of the detainees in the total number of convicts and detainees has decreased steadily up to 23.3 %. As of 31 December 2012, among 136.020 inmates, only 31.707 are detainees and remaining 104.313 are convicts. About 3 million criminal cases enter in the Turkish judicial system annually and the rate of detention is recorded as 1.05 % in these cases.
· As seen in Table 1, the detainees constitute 23.3 % of the total inmates.
As seen in Table 2, the rate of detainees in the prisons was 50.4 % in 2001. There was a steady decrease in the following years starting from 2006 and the figure came down to 23.2% in January 2013.
28. Among the inmates across the country, the rate of detainees, who have been in prisons for less than 2 years, is 91.03%. If the detainees, who have been in prisons for less than 3 years are counted; this rate reaches to 96.28%. The rate of the detainees in prisons for more than 3 years, within the scope of organized crime cases, is only 3.71%. In organized crimes there exists a many number of accused and offence types. It should also be noted that some of the detainees have taken the detainee status again once the Court of Cassation quashes a conviction decision.
· As seen in Table 3, almost all of the detainees consist of inmates who have been in prisons for less than 2 years.
· As seen in Table 4, the number of detainees in exceptional circumstances, who have been in prisons for more than 3 years, within the scope of organized crime cases, whose number of accused and offence types are high. Some detainees were convicted before they became detainees again following the decision of the Court of Cassation to quash the conviction.
b. The Practice of the Courts authorized with Article 10 of the Anti-Terror Law
29. As stated above, courts and Public Prosecutor’s Offices authorized under Article 250 of the new CCP dated 2005 were abolished by Law No. 6352. In its stead, courts and Public Prosecutor’s Offices authorized under Article 10 of the Anti-Terror Law have been established.
30. Under the same Law, with a view to enhancing the practice of detention only in unavoidable situations, the judges called “judge of liberties” have been assigned to decide on detention and continuation of detention concerning the offences, which fall within the remit of the courts and Public Prosecutor’s Offices in question during the investigation stage.
31. Since the assignment of these judges, who do not take part in the proceedings and who examine the detention separately from the merits of the main case, the number of decision of detention rendered within the offences in question has significantly decreased.
32. Within the scope of the offences in question, between 1 January 2012 and 30 June 2012, the relevant Public Prosecutors referred 3882 persons to the courts for detention and 2196 of them were detained on remand.
33. However, during the period between 5 July 2012 and 31 December 2012, the relevant Public Prosecutors referred 2097 persons to the “judges of liberties” for detention and 1293 of them were detained on remand. In this regard, when compared to the first half of the year, the number of persons referred for detention decreased by 45.99 % and the number of detainees decreased by 41.13 %.
c. Judicial Control Practices
34. As stated above, special attention has been paid to enhancing the judicial control practices as alternative measures to the detention. For this reason, in addition to introduction of the judicial control practices to the Turkish law in 2005, with the Law No. 6352 that entered into force on 5 July 2012, the types of measures have also been enhanced and the scope of practice has been expanded.
35. The courts have preferred the judicial control measures instead of detention measures following the abolishment of the upper limit period for the judicial control measures, paving the way for implementing the measures to all kinds of offences. The number of decisions on judicial control has steadily increased since 2006. In the first 6 months of 2012, judicial control measures were implemented in respect of 13.310 persons. During the period from 5 July 2012, when the last legal amendment entered into force, up to 31 December 2012, judicial control measures were implemented in respect of 25.911 persons and the number of decisions on judicial control increased by 94.6 %.
· As seen in Table 5, the number of persons on whom the judicial control measures imposed increased per year. After the amendment allowing the implementation of judicial control measures to all kinds of offences, the increase in 2012 has nearly doubled when compared to the previous year.
· As seen in Table 6, in the first 6 months of 2012, judicial control measures were implemented in respect of 13.310 persons. From 5 July 2012, when the last legal amendment entered into force, to 31 December 2012, judicial control measures were implemented in respect of 25.911 persons and the number of decisions on judicial control increased by 94.6 %.
1.2. Lack of an Effective Remedy to Challenge Detention (ECHR Art 5 § 4)
36. On many occasions the ECtHR has decided that there exists no effective remedy in the Turkish law which are in line with the principles of adversarial proceedings and equality of arms and offering a chance of success to a certain extent, in order to challenge the decision of detention. Making the assessment of objection to detention and examination of continuation of detention without a hearing and without communication of the prosecutor’s opinion to the detainee or his lawyer during these stages have been considered as the major causes of violation.
37. In the 4th Judicial Reform Package, submitted to the Turkish Grand National Assembly by the Council of Ministers on 7 March 2013 and which is expected to be enacted in the upcoming days, there exists provisions envisaging improvements in the detention mechanism.
38. The 4th Judicial Reform Package, with the amendments to the new 2005 CCP, envisages to make the assessment of objection to detention and examinations of detention on remand, in line with the principles of adversarial proceedings and equality of arms.
39. According to the Article 104 of the new CCP of 2005, the detainee and his lawyer can request his release at any stage of the investigation and prosecution. Upon these requests for release, the court will receive opinion from the Public prosecutor pursuant to the Article 105 of the same Code, but there is no obligation to serve this opinion on the detainee or his lawyer.
40. The courts examine the conditions of detainees at the investigation and prosecution stages within a certain period that cannot exceed 30 days and can decide on the continuation of detention when necessary pursuant to Article 108 of the new CCP. These examinations are made without a hearing at all stages of investigation; however, there exists no explicit provision that prevents holding a hearing. The examinations of the hearings on the merits are made through the same procedure at the prosecution stage.
41. In Turkish law system, it is possible for the detainee or his lawyer to challenge both the decisions rendered upon the requests for release and on the continuation of detention. As per Article 270 of the new CCP; the court, which examines the objection in question, can again receive the Public prosecutor’s opinion. However, there is no practice of serving this opinion on the detainee or his lawyer.
42. With the amendment to be made to Article 105 of the new CCP of 2005 by the 4th Judicial Package, the practice of receiving the Public prosecutor’s opinion on the detainee’s off- hearing requests for release will be terminated. As a result of this amendment, when the request for release is submitted to the court, which rendered the decision of detention, the opinion of neither the prosecutor nor the detainee will be received. Only the court itself will assess the request in question. Accordingly, the requirements of the principle of equality of arms will be met when examining the detention.
43. During the investigation stage, the examinations on continuation of detention, to be conducted in every 30 days at the latest will be made by hearing the detainee or his lawyer, under an amendment to be made in Article 108 of the new CCP. With this amendment, the requirements of the principle of adversarial proceedings, set out in the ECtHR standards, will be performed as regards the effectiveness of the objection to detention.
44. With the amendment to be made to Article 270 of the new CCP , when the judges or courts receive the public prosecutor’s opinion before the assessment on objection to decision of detention or rejection of the request for release, this opinion shall be served on the detainee or his lawyer for any opposing view they may wish to express. The aim of such an amendment is to provide respect for principle of equality of arms and to bring the system of an objection to detention in line with the ECtHR standards.
45. At this juncture, the Government brings to the Committee’s attention the fact that some of the domestic courts do examine the objection to detention with a hearing, when requested, in compliance with the standards set out in the ECtHR judgments (For example see, Annex 1, 2, 3, 4, 5).
1.3. Lack of a Right to Compensation (ECHR Art 5 § 5)
46. In its many judgments regarding the lack of a right to compensation, the ECtHR has stated that the right to compensation for arrest and detention, set out in Article 141 and the following Articles of the new CCP, does not properly cover properly paragraph 4 of the Article 5 of the ECHR. The ECtHR has considered this compensation remedy as ineffective since a final judgment is required in order to request compensation as regards the provisions in question. In accordance with the above-mentioned legal arrangement, the Court considered it as another problematic area that the compensation cannot be requested where the period of unlawful detention or custody is deducted from a different imprisonment imposed on the person.
47. In the Turkish legal system, the compensation for unlawful arrest or detention used to be awarded in accordance with the provisions of the former Law No. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained before 2005. According to the former Law; the persons who
ü were detained under the circumstances not indicated by the Constitution or other laws.
ü was a decision for their continued detention,
ü were not notified immediately the reasons for arrest or detention or the allegations against them in writing,
ü were not brought before a judge within the legal compulsory time period after arrest and detention,
ü were deprived of their liberty without a court decision after the legal compulsory time period had passed for them to be brought before a judge,
ü were arrested or detained whose relatives were not informed immediately about their situation,
ü were arrested or detained pursuant to the relevant laws and about whom the decision of non-prosecution or of acquittal or of no requirement of penalty imposition was rendered or where there was no ground for punishment or release,
ü were convicted but whose periods of detention were longer than the periods of conviction or who were only imposed a fine after detention on remand,
could claim compensation for any kinds of loss.
48. Law no. 466 was abolished with the adoption of new CCP of 2005. The compensation related to the arrest and detention on remand has been set out in Articles 141-144 of the new CCP. This new legal arrangement is parallel to the former Law no. 466. It has extended the situations in which compensation could be requested due to an arrest and detention on remand. In addition to the existing circumstances included in the former Law no. 466, individuals who
ü Had been arrested with an arrest warrant without being told of their legal rights, or whose request to use these rights have not been fulfilled after being informed of his rights,
ü did not receive a judgment within a reasonable time,
can request compensation as well.
49. Pursuant to the Article 141/1 of the new CCP, during the investigation or prosecution stages the individuals, who
ü were arrested, detained or whose detention was continued in contravention to the provisions of the laws,
ü were not brought before a judge within the legal compulsory period of custody,
ü were detained without being informed of their legal rights, or whose request to use such rights were not fulfilled after his rights had been informed, were not brought before the judicial authority within a reasonable time and did not receive a judgment within the same period of time even though they had been arrested or detained legally,
ü If a decision of non- prosecution or decision of acquittal rendered after having been arrested or detained legally,
ü were convicted, but the period they had spent in custody and detention was longer than the period in the sentence; or were necessarily only fined, as the Criminal Code requires a fine only for their conduct; were not given written documentation of reasons of arrest or detention and of the accusations against them; or, in cases where written documentation was not possible, there was a failure to provide the individual oral explanation about the above mentioned reasons were arrested or detained and whose relatives were not informed about their situation,
may request their pecuniary and non-pecuniary damages to be redressed by the State.
50. Under the former Law no. 466 a person could only request compensation due to arrest or detention on remand when the judgment against the person, rendered at the end of the case became final or when the allegations of the offence(s) were completed by the competent authorities. Similarly, Article 142/1 of the new CCP lays down that the action for compensation due to the arrest and detention on remand shall be initiated from the date on which the decisions of detention or court decisions on the merits becomes final.
In the new legal arrangement, conclusion of the case or allegations against the detainee is not a condition anymore for the compensation request. Accordingly, it is possible to bring an action for compensation related to the arrest and detention upon the finalization of the detention decision, decision on the continuation of detention or rejection of the request for release.
1.3.1 Judiciary’s Evolving Case-Law
51. The Court of Cassation, especially in its recent decisions, has extended the field of application of the rights to request compensation for the violations of the right to liberty and security that set out in Articles 141 and 142 of the new CCP. Here, the positive effect of the amended paragraph 5 of Article 90 of the Constitution of the Turkish Republic1 is underlined.
52. Until 2011, actions for compensation related to arrest and detention were handled by the relevant Chambers of the Court of Cassation dealing with the merits of the main case that the arrest or detention based on. Therefore, there was no consistency among the decisions of the high court on the compensation cases resulted from unlawful arrest or detention. However, a new division of work was introduced in 2011, which authorized the 12th Penal Chamber of the Court of Cassation in dealing with the actions for compensations related to arrest and detention. This amendment has provided a significant guarantee in respect of the rights of individuals under Article 5 § 5 of the Convention, and also has ensured specialization and prevented the differences in practice.
53. However it appears that the former Law no. 466 continues to form a basis with regard to the practices of the domestic courts instead of the new CCP, which provides more opportunities for compensation. In order to remedy this situation, significant changes have been undertaken for the alignment of the domestic rules with the ECtHR standard through the judgments rendered by the Court of Cassation.
54. Within the scope of the compensation cases based on the arrest or detention issues, the 12thPenal Chamber of the Court of Cassation interpreted the Article 141 and 142 of the new CCP in a different manner and stated that, there was no obligation for the courts to decide on the merits of the case when a compensation request was submitted. The 12th Penal Chamber also held that, if the compensation request was not in connection with the final judgment or the conclusion of the case, the decision on the compensation request must be given without waiting for the final judgment.
55. In this respect, the 12th Penal Chamber of the Court of Cassation quashed the decisions of domestic courts rejecting the requests for compensation related to excessive length of detention on remand, being brought before the judge in due time and transitional detention (yol tutuklaması) (detention in place out of jurisdiction in order to bring the accused to the trial court), and ruled that these requests must be examined before the main case was concluded (See Annexes 6, 7, 8 and 9).
56. The Court of Cassation also assessed detention periods which were shorter than the term of imprisonment sentence. Here, the Court of Cassation noted that even if the period of detention was deducted from the term of conviction, an unreasonable period of detention was in breach of Article 5 § 3 of the ECHR. For that reason, the Court of Cassation decided that the individuals must be awarded compensation in such circumstances (See Annexes 10 and 11).
57. In its decision Demir v. Turkey (51770/07) of 29 October 2012, the ECtHR considered the aforementioned arrangement on compensation in the new CCP and applied by the Court of Cassation as an effective domestic remedy which must be primarily exhausted, and hence declared the application inadmissible due to non-exhaustion of domestic remedies.
58. The ECtHR noted in its aforementioned judgment that a legal arrangement enabling the detainees, on whom any verdict was not rendered within a reasonable period, to request for compensation in accordance with the Article 141 and following articles of the new CCP. The Court also stated that an award of compensation relying on Article 141/1 (d) of this Law requires the determination as to whether the period of detention on remand is reasonable or not. The Court noted that this remedy ensured the determination of the excessive length of the detention period and at the same time the possibility of redressing the damage suffered by the individual.
59. According to the ECtHR, there was no indication causing doubt about the effectiveness of the supervision that will be exercised by the domestic judicial authorities on this occasion, and to allege that such a remedy would certainly be unsuccessful. As a reminder of the subsidiary nature of its role, the ECtHR considered that the applicant had a new domestic remedy whereby he/she could allege that Article 5 § 3 of the ECHR has been violated before the domestic judicial authorities. Moreover, it stated that the article in question was a new statutory provision adopted for the specific purpose of creating a remedy to redress this type of grievance, there was an interest in bringing the matter before the domestic courts to enable them to apply the provision.
60. The ECtHR concluded in the same judgment that the legal remedy set out in Article 141 of new CCP of 2005, was accessible. The Court also stated that there was no factor that proved the legal remedy in question as ineffective and/or that it did not provide reasonable opportunity for success (also see Balca v. Turkey, no. 41843/07).
61. Consequently, by means of the practices of the Court of Cassation, the opportunities for compensation based on arrest and detention on remand have been extended both in the substantive as well as the procedural aspects. The Court of Cassation has made fundamental changes in the interpretation of Articles 141 and 142 of new CCP, and is continuously developing its decisions in line with the ECtHR standards.
1.3.2. Individual Application before the Constitutional Court as an Effective Domestic Remedy
62. Individual application was introduced into the Turkish legal system by the 2010 constitutional amendments and since 23 September 2012, the Constitutional Court has been receiving applications. Article 148 of the Constitution stipulates that anyone who considers that his/her constitutional rights set forth in the European Convention on Human Rights have been infringed by a public authority would have a right to apply to the Constitutional Court after exhausting other domestic remedies.
63. After examination, the Constitutional Court decides whether the fundamental rights of the applicant have been violated or not. If it finds a violation, it may also decide what should be done in order to redress the violation and its consequences.
64. In case the violation has been caused by a court decision, the Constitutional Court sends the file to the competent court for retrial in order to restore the fundamental rights of the applicant. But, if the Constitutional Court deems that there would be no use of a re-trial, then it may award compensation to the applicant or it may ask the applicant to file a case before the competent first-instance court to seek compensation for the damages he/she suffered.
Bringing complaints on the right to liberty and security before the Constitutional Court and their examinations in the domestic law are also possible. As of 28.02.2013, there have been 2967 individual applications lodged with the Constitutional Court, and according to the information obtained from the court, 124 out of 2967, in other words 4.17 percent of these applications concern Article 5 of the ECHR (the right to liberty and security). The Constitutional Court is expected to render decisions on these applications in the forthcoming period. The Government shall inform the Committee of Ministers of the decisions of the Constitutional Court about those applications.
1.3.3. Other Legal Arrangements
65. Article 13 of the draft known as the 4th Judicial Reform Package is to add subparagraph (k) setting out “the individuals who are deprived of legal remedies foreseen in the law against detention or arrest warrant’ to Article 141/1 of the new CCP 2005 which lays down the circumstances in which compensation can be requested due to the arrest and detention on remand. The compensation opportunities in the new CCP are more comprehensive than the former Law no. 466, which was not considered as sufficient and the scope has been much more extended.
66. It was not possible or permissible for individuals to have an effective remedy against detention where Article 5/4 of the ECHR was violated by requesting compensation pursuant to Article 141 of the new CCP. This remedy will now also be provided with the new arrangement.
67. Article 14 of the same draft abolishes Article 144/1 (a) of the new CCP. It sets out that ‘the individuals, whose period of unlawful custody and detention on remand was deducted from their other conviction, may not request compensation.’ In this way, the individual subjected to unlawful arrest or detention on remand, can request compensation from the State in respect of all pecuniary and non-pecuniary damages even if the period during which he/she was deprived of his/her liberty is deducted from his/her another conviction.
1.4. Supervision of the Practices Concerning the Detentions
68. As per the principle decision of the High Council of Judges and Prosecutors of 30 September 2011 relying on Law no. 2802 on the Judges and Prosecutors, the judgments rendered by the ECtHR are taken into consideration in the promotion of the judges and prosecutors. It has a direct impact on their promotions. The judges and prosecutors whose decision or actions have led to a violation of Article 5 of the ECHR are therefore negatively influenced by such decisions or action. The judgments rendered by the ECtHR against Turkey are transmitted to the HCJP without any delay in order to ensure this supervision.
69. The inspectors from the HCJP draw up reports about the judges and prosecutors about their professional information, studies and performances at the end of the regular supervisions. In these reports, the importance given to the cases in which individuals are deprived from their liberty and the speed of the proceedings are assessed in a separate part. Inspectors aim to prevent violations of the fundamental rights, accordingly they first request the documents concerning the detention immediately to establish whether there has been a procedural fault. If they identify a delayed assessment, factual mistake and unlawfulness and a legal remedy to be applied depending on these, the inspectors take the necessary steps to activate the relevant authorities. These results considerably affect the positions to which the judges and prosecutors will be appointed in future and their promotions. This supervision mechanism ensures that judges and prosecutors diligently carry out the trial procedures in the case-files which include detainees in line with the provisions of the ECHR and judgments of the ECtHR.
70. The numbers of detainees in the penitentiaries are regularly monitored by the Directorate General of Prisons and Detention Houses of the Ministry of Justice and directly reported to the Minister of Justice once a week.
2. General Actions
2.1. Judicial Reform Studies:
2.1.1. Judicial Reform Strategy and Action Plan
71. In recent years, the Turkish Government has started to handle expectations regarding the judicial system with a reformist, comprehensive, participatory and systematic understanding. Problematic issues in the judicial system have been identified and given significance and priority with meticulous and detailed studies and that have been documented in political instruments where short, medium and long term settlements are included. The first one of these studies is the Judicial Reform Strategy and Action Plan adopted by the Council of Ministers in 2009 and has already started to be implemented.
72. The Judicial Reform Strategy was prepared within the scope of the European Union membership negotiations and has been presented to the European Union bodies. There are 10 objectives and 75 goals in the document. Enhancing the efficiency and effectiveness in the judiciary and concluding cases within a reasonable time are the most important objectives. As of today, about 70% of the objectives and goals in the Strategy Document have been fulfilled. Besides the improvements in the reforms the consequences of which we experience in practice, significant improvements have occurred in the goals which have continuity by their very nature.
73. At this stage, the studies aiming at the documentation of implementation of the Strategy Document, which is highly important in the studies conducted in jurisdiction, eliminating the problems confronted in the implemented fields, and updating the document in order to reflect the new improvements throughout the world and in Turkey have been launched.
74. The draft contains 11 objectives and 104 goals. Particular importance is placed on human rights and the “Prevention of Human Rights Violations Arising from the Judicial Practices and Legislation and Enhancing the Human Rights Standards” is regarded as a separate objective. Under this objective, nine different goals have been assessed setting out necessary measures to be taken to conclude the cases within a reasonable time.
75. The third aim of the “Improvement of the criminal execution system” purpose of the same draft has been assessed as “providing a more efficient system of supervised liberty by making improvements”. In this respect, implementation of the judicial control measures alternative to detention measures was given special importance.
76. On 15-17 November 2011, a “High-Level Conference” with broad participation, was organized in Ankara by the Ministry of Justice. In six different commissions, established within the scope of the High-Level Conference, all judgments rendered by the ECtHR in respect of Turkey were analyzed, problematical areas leading to violations were determined and offers of solutions were developed. Relying on the findings reached during the High-Level Conference, a “Draft Action Plan on the Prevention of Human Rights Violations” has been prepared which includes studies to be materialized in short, medium and long term.
77. The Draft Action Plan consists of 14 main objectives. With the aim of materializing these objectives, 51 goals have been determined; and the activities that will be performed in order to reach the goals in question have respectively been explained one by one under each goal. In the Action Plan, preventing violations of the right to liberty and security is set out as one of the main objectives.
78. The draft action plan will be submitted to the Council of Ministers, after which it will be put into effect within a short time. After the Action Plan is adopted, the Turkish Government will submit this Action Plan to the Committee of Ministers.
2.1.3. Situation Analysis in the Judiciary and Legal Negotiation Meetings
79. In 2010, the HCJP initiated meetings on the situation in the judiciary to analyse, identify and discuss the problems on the functioning of the judiciary. On 3-5 October 2011, at the end of the meetings held in 16 regions, “Evaluation Meeting on the Situation Analysis in the Judiciary” was held and an identification report on increasing the effectiveness and efficiency of the judiciary was issued. The report was submitted to the Ministry of Justice for the necessary legal amendments. As a result, necessary amendments were made to the relevant laws to eliminate the obstacles in the judiciary,
80. After the Meetings on the Situation Analysis in the Judiciary held in 2010, the High Council of Judges and Prosecutors organized “Legal Negotiation Meetings” in 2012, for the purpose of enabling the judges and prosecutors to hold meetings at the regional level, thereby sharing their knowledge and experiences, to come together with the members of the high courts and judge rapporteurs at these meetings and to negotiate over the controversial issues; thereby taking an important step to provide harmonisation in practice.
81. In this context, holding meetings on a regular basis among judges, prosecutors, lawyers, academicians and law enforcement officers working in the same region, is planned; and increasing the confidence in the judiciary and ensuring practical harmonisation among the judicial bodies are aimed. In 2012, legal negotiation meetings were held in Istanbul, Erzurum, Izmir, Konya, Afyon and Antalya; 552 judges and prosecutors attended those meetings. It is planned that the legal negotiation meetings will be held every year in September and May for the period of 4 weeks in each month.
82. Hence, with the aim of analyzing, on a regular basis, the elements that lead to the violation of the ECHR regarding custodies, detentions and continuation of the measures; with the participation of the judges and prosecutors who take office in the field, and for the purpose of informing the decision-making bodies and the legislative body, if necessary, about the deficiencies, an important mechanism has been established.
2.2. Training and Project Activities
2.2.1. The Justice Academy of Turkey
83. With a view to providing vocational trainings for the candidates of judge and prosecutor and judges and prosecutors, the Justice Academy of Turkey that has a legal entity and has the scientific, administrative and financial autonomy was established with the Law No. 4954 on Justice Academy in Turkey. In order for the Justice Academy to carry out its activities, a closed area of 25.413 m2 and an open area of 74.587 m2, and a total area of 100.000 m2 became available in 2005.
84. Lessons regarding the articles of the ECHR, including the right to liberty and security, were put in the regular curriculum for the trainee judges and prosecutors at the Justice Academy of Turkey. The following subjects are included in the curriculum regarding the right to liberty and security :
ü Implementation of Protective Measures in the Light of the ECtHR Judgments,
ü Grounds of the Court Judgments in the Light of the ECtHR,
ü Human Rights and Practices of the ECtHR,
ü Arrest- Custody- Detention- Secret Witnessing,
ü Reflection of the ECtHR Judgments in the Domestic Law,
ü ECHR and Turkey,
ü Arrest-Custody-Detention Practices.
85. Within the scope of the in-service training programs at the Justice Academy of Turkey, certain periods of trainings are provided for the judges and prosecutors in charge. In this respect, trainings on the following subjects have been provided until recently:
ü Freedom of Expression in the ECtHR Judgments and Procedure of Justification in the Detention Orders,
ü Implementation Procedure of the Protective Measures in the Courts Authorized with Article 10 of the Anti-Terror Law and in the Chief Public Prosecutors’ Offices,
ü Violations of Article 5 of the ECHR,
ü French Experience in Anti-Terrorism and Judges of liberties,
ü Arrest- Custody- Detention- Secret Witnessing,
ü A General View of Wiretapping-Techniques for Taking Statements-Protective Measures in Anti-Terrorism,
ü Implementation Procedure of the Protective Measures in the Courts Authorized with Article 250 of the CCP and in the Chief Public Prosecutors’ Offices.
86. Moreover, at the in-service training programs that will be held in Ankara between 23 - 25 September 2013, the judges and prosecutors in charge will be provided training on Arrest, Custody, Detention, Judicial Control, Search and Confiscation, in the light of the ECtHR judgments.
2.2.2. Translation of the ECtHR Judgments
87. All the judgments of the ECtHR regarding Turkey and important judgments regarding other countries are translated into Turkish, as required by law, by the Human Rights Department of the Directorate General for International Law and External Relations of the Ministry of Justice. The translations of the judgments are published on the Department’s website http://www.inhak.adalet.gov.tr. The judgments under the Demirel group of cases have also been translated into Turkish and published on the mentioned website.
88. Moreover, the translations of the judgments against Turkey are sent to the relevant Chief Public Prosecutors’ Offices and the courts. The judgments under the Demirel group of cases have also been sent to the Chief Public Prosecutors’ Offices and the relevant courts.
89. Besides the ECtHR judgments, “thematic information notes” are also translated into Turkish by the Turkish Ministry of Justice, including the ones regarding the right to liberty and security. The translated thematic information notes are published both on the website of the Human Rights Department http://www.inhak.adalet.gov.tr/tematik/bilgi_not.html and on the website of the Courthttp://echr.coe.int/ECHR/en/Header/Press/_Information+sheets/Factsheets/ with the Turkish language option.
2.2.3. Training of Judges and Prosecutors Abroad
90. In 2011, with the Decree Law No. 650, amendment was made to the Law No. 2802 in order to ensure that the judges and the public prosecutors are sent abroad for educational purposes and to determine the financial rights and obligations of the persons going abroad.
91. In order to materialize the objectives regarding human rights set out in the Strategic Plan, which was adopted by the High Council of Judges and Prosecutors, containing 2012-2016 period; “Project on Raising the Awareness of Judges and Prosecutors about the European Court of Human Rights Judgments” was initiated between 2012 and 2014. The aim of the project is to ensure that the judges and prosecutors take into account the assessments and case-law of the ECtHR concerning the rights and freedoms guaranteed by the ECHR during the proceedings they conduct. Within the scope of the project, 700 judges and prosecutors are expected to pay study visits to Strasbourg. In the event that the institutional capacity of the ECtHR is available, 18 visits will be made to the Court within three years. The first four of these visits have been made since November 2012, and 14 more visits are planned to be made by the end of 2014.
92. By the beginning of 2013, 225 judges and prosecutors were sent abroad by the Ministry of Justice and the High Council of Judges and Prosecutors within the scope of the training activities such as foreign languages, master’s degrees, doctorates and internships at the ECtHR. 104 judges and prosecutors are still receiving education abroad for different reasons. In this regard, the judges and prosecutors would be sent abroad in the same way throughout 2013.
2.2.4. Project on the Improvement of the Effectiveness of the Turkish Criminal Justice System
93. The Turkish Criminal Justice System will generally be reviewed by the Project on the Improvement of the Effectiveness of the Turkish Criminal Justice System, and its compliance with the ECHR and ECtHR standards in terms of legislation and practice will be assessed, hence necessary measures will be taken. Elimination of the problems concerning the right to liberty and security and strengthening the capacity of implementation of the ECHR are also significant components of the Project. Within the context of the Project launched on 12 March 2012, 80 trainers will make 10 study visits to the European Union member states and institutions. The Project also includes the preparation of training materials for ensuring effectiveness in terms of the ECHR standards and publishing of 14.000 copies; organizing a 14-staged training programme for 420 judges and prosecutors about the ECHR standards for 3 days; and making study visits to national pilot courthouses.
94. “Protection measures” constitutes one of the four main subjects in the Project. The most important part of the main subject is the practice such as arresting and taking into custody, as well as, detention and judicial control. Thus, through the Project, analysis and solution of the problems encountered in the Turkish Criminal Justice System in terms of right to liberty and security has been targeted.
2.2.5. Seminar on Detention in view of the ECtHR Case-Law
95. On 30-31 May 2013 a 2-day seminar will be held on “Detention on Remand in Turkey in the Light of European Standards of Human Rights Protection” will be a joint activity of the Ministry of Justice and the TAIEX, and planned to be attended by 120 judges and prosecutors. The subject matter of the seminar will be Article 5 of the Convention. Within the scope of the seminar, the problems encountered in practice as regards the requirements of each paragraph of Article 5 of the ECHR and the guarantees provided in the same article will be discussed in detail with suggestions for solutions. The judges to attend the seminar will be selected among the judges of the magistrates’ court, who deal with detention processes. Raising awareness among judges and prosecutors on ECHR provisions and ECtHR judgments is targeted.
2.3. Extending the Use of Information Technologies
96. With a view to facilitating the provision of the justice service in a quicker and more qualified manner, the UYAP Informatics System, an integrated data operating system and testing started in 2005, was put into operation in Turkey in the year 2009.
97. Through this system, the length of the transmission periods of data and documents between the judicial bodies has been reduced to the minimum, and the increasing workload and files are now more easily supervised.
98. A connection established between the relevant organizations and institutions and the judicial authorities, ensures quick and effective flow of data and documents with those organisations and institutions during the course of the judicial process.
99. With the system, by bringing an average of 500 million documents, 10 million cases and 10 million execution proceedings per year on the electronic environment, reduction of the costs and assurance of quickness and effectiveness are targeted.2
100. The system also ensures that adopted laws and case-law established with other regulatory acts are able to reach the practitioners quickly; and it also functions as an effective training platform.
101. This open-ended system facilitates the lives of the members of the judiciary and the beneficiaries of the judicial service with the use of additional electronic service facilities such as e-signature, informing by SMS and video conference.
102. Besides ensuring the quickness of the judicial process, all these improvements also accelerate detention pending trials, and significantly eliminate the reasons for the continuation of detention. Furthermore, through UYAP, any kind of release decision reaches the relevant institution without any delay, thereby ensuring the immediate release of detainees.
103. The electronic environment UYAP, guarantees transparency in terms of procedure and length of examinations by court concerning length of the detainees’ detention, their detention on remand and their objections to detention.
104. Moreover, by means of the introduced Audio-Visual Information System (SEGBİS), the courts and public prosecutors’ offices are able to receive from long distance audio-visual statements of accused, witnesses, complainants, interveners etc. without the necessity of their presence at the court houses or prosecutors’ offices.
105. In addition to contributions that ensure quickness, the SEGBİS provides that examination concerning objections to detention and continuation of detention will not be carried out on the basis of the case file, but by means of appearance of suspects or accused persons before the judge easily.
2.4. Issuance of Notice
106. In its assessment during the DH meeting in December 2009, the Committee invited Turkey to issue a circular concerning detention on remand. The Circular no. 10, which the High Council of Judges and Prosecutors (HCJP) declared on 18 October 2011 to all judicial authorities:“Procedures and merits of investigation”, includes the requirements of the ECHR provisions in detail and the ECtHR judgments, with references to relevant judgments3. In this context, the processes as regards the case files concerning a detainee and the custody process are indicated in detail and in this way due attention and diligence is aimed for in relation to the lawfulness of practices and their quickness.
107. General information on the measures materialized in the field of legislation, physical infrastructure and training on human resources in the Turkish legal system is given above. The improvements in question are aimed at completely eliminating the problematic practices leading to violations in respect of detention on remand after the comprehensive analysis of the grounds leading to the problem of excessive length of detentions.
108. The statistical data presented in this plan, reveal that positive results have already been achieved at this stage. Activities reported in the action plan have been mainly materialized in recent years. Therefore, tangible results of these reforms and improvements are expected to be obtained more efficiently in the forthcoming years. The Government believes that concrete results achieved through the steps reported at the March 2013 DH meeting with regard to length of judicial proceedings will also have a significant positive impact in bringing the length of detention periods to the minimum level in practice.
109. Furthermore, the individual application to the Constitutional Court has come into effect as a domestic remedy whereby the complaints concerning the violations of the right to liberty and security are settled at national level. The remedies constituted in the domestic law make additional contribution to the settlement of the problem, with due respect and gratitude to the decisions to be rendered in this process. The Turkish Government shall continue to take necessary measures to enable the practices of detention on remand to be fully in line with the ECtHR case-law.
110. Having regard to the aforementioned improvements, the Turkish Government kindly requests that the supervision of the Demirel judgment and other 176 judgments, at present supervised by the Committee of Ministers under the enhanced procedure, to henceforth be supervised under the standard procedure.
111. The Turkish Government shall continue to inform the Committee of Ministers of the steps taken and especially the results of the reforms and operation of the domestic remedies in due course.
1- Minutes of hearing, dated 28 February 2012, of the Salihli Assize Court
2- Minutes of hearing, dated 20 March 2012, of the Salihli Assize Court
3- Minutes of hearing, dated 12 June 2012, of the Salihli Assize Court
4- Minutes of hearing, dated 14 June 2012, of the Salihli Assize Court
5- Minutes of hearing, dated 10 July 2012, of the Salihli Assize Court
6- Judgment, dated 4 April 2012, of the 12th Criminal Chamber of the Court of Cassation
7- Judgment, dated 15 May 2012, of the 12th Criminal Chamber of the Court of Cassation
8- Judgment, dated 17 September 2012, of the 12th Criminal Chamber of the Court of Cassation
9- Judgment, dated 1 November 2012, of the 12th Criminal Chamber of the Court of Cassation
10- Judgment, dated 17 December 2012, of the 12th Criminal Chamber of the Court of Cassation
11- Judgment, dated 3 January 2013, of the 12th Criminal Chamber of the Court of Cassation
1 A sentence was added to Article 90/5 of the Constitution of the Turkish Republic with Law dated 7 May 2004 and no. 5170 in order to bring the domestic law in line with the standards of the ECHR and ECtHR. This amendment sets out that 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.
2 The Ministry of Justice, the Information Processing Department, National Judicial Network Project, UYAP Kitabı, p. 2, http://wwww.uyap.gov.tr/kitap/uyapkitap.pdf