“Individual application has been the most important judicial reform in the last decade”

Ministry of Justice organized a meeting within the framework of the renewal of the Judicial Reform Strategy Document in Ankara Hakimevi. President of the Constitutional Court Mr. Zühtü Arslan, President of the Court of Cassation Mr. İsmail Rüştü Cirit, President of the Concil of State Mrs. Zerrin Güngör, Minister of Justice Mr. Abdulhamit Gül, President of the Council of Higher Education (YÖK) Mr. Yekta Saraç, some politicians, lawyers and academicians participated in the Program. Mr. Zühtü Arslan, President of the Constitutional Court, stated in his speech that judicial reform was vital. Mr. Arslan, specifying that reform was to be in “form” by restoring what had deteriorated, continued as follows:

“If the reform is made in the area of judiciary, we can mention two aspects of the form or the ideal judiciary, which are respectively related to the individual and the State. First, judiciary is a mechanism that guarantees the fundamental rights and freedoms of individuals by administering the justice in the most proper way. Second, judiciary has the function of protecting the map of rulership drawn by the legal rules, especially the Constitution, and thereby acts as the most important guarantee of a democratic state of law. Although the means of judicial reform may vary by time and place, such a reform must always serve the purpose of ensuring these two basic functions effectively. These two functions require, on one hand, that judicial actors must have certain personal and professional qualifications and, on the second hand, that they must be independent and impartial at both personal and institutional levels.”

“Basic virtues of a proper functioning judiciary: Mind, morals and justice”

Mr. Arslan, pointing out that independence and impartiality of the judiciary are sine qua non for the rule of law, noted that an effective judicial system must also be based on three basic pillars, namely mind, morals and justice, which constituted the foundation of a virtuous society.

Stating that “Mind, in the most general sense, is the ability to distinguish between what is right and what is wrong, as well as, what is useful and what is harmful.” and pointing out that those who cannot use their minds would be the captives and instruments of the minds of others, Mr. Arslan continued as follows:

“This is called paternalism. As argued by Kant, paternalism “is the greatest despotism imaginable”. In this sense, especially the judicial mind requires free and independent conscience. We have learned through experience how fatal consequences have the remote controlled members of a judiciary affected by paternalism led to. Mind requires learning from experiences, and prudence requires not being bitten for the second time through the same hole.”

Mr. Arslan, citing the remarks of the first President of the Republic of Bosnia and Herzegovina, Mr. Alija Izetbegović, who expressed Morality is inseparable from freedom. Only free conduct is moral conduct.”, stated that at the social level, morality also entails responsibility towards “the other” and that those who do not have freedom do not have responsibility, either.

Underlining that the most important manifestation of all religions and ideologies is fundamental rights and freedoms, President Mr. Arslan specified that justice did not ask for the identity of the right holder, nor did it “otherize” him, that it was not a matter of discourse but action, and that manifestation of justice strengthened the trust in the State on one hand and in the judiciary responsible for dispensing justice on the other.

“Individual application is a great achievement for the Turkish legal system”

President Mr. Arslan stated that the most important judicial reform of the last decade in terms of the protection of constitutional rights and freedoms was the introduction of the individual application mechanism.

Expressing that through the new mechanism, the Constitutional Court was performing a very important function in the protection of fundamental rights and freedoms in our country, Mr. Arslan stated that “Individual application is a great achievement for the Turkish legal system”.

Reiterating that beyond turning the Constitutional Court into an institution interacting with the individuals in their daily lives, individual application mechanism also brought the Court’s relationship with the other courts to a different level, Mr. Arslan pointed out that this mechanism also enabled the Court to observe more closely the matters concerning the functioning of the judiciary.

“Constitutional Court has received 208.000 applications in 6 years”  

Considering the Court’s experience in the field of individual application for over six years, Mr. Arslan pointed out that the judiciary faced two main problems such as increasing workload and lengthy proceedings in conjunction therewith, as well as, the quality of the proceedings.

Stating that the Constitutional Court received approximately 208.000 applications since 2012 and that approximately 167.000 of these applications were concluded, Mr. Arslan underlined that 40.000 applications were pending and that this number was equal to that of the applications annually received by the Constitutional Court in the last two years.

Mr. Arslan, giving as example the annual number –5-6 thousands– of applications received by the Federal Constitutional Court of Germany implementing individual application mechanism for years, drew attention to the size of the workload in Turkey.

“Our reform studies continues unabated”

President Mr. Arslan stated that most of the violations found in the individual applications were related to the right to a fair trial and to the lengthy proceedings in conjunction therewith and that these violations constituted approximately 62 percent of the total violations.

Pointing out that the reforms to be made in order to speed up the proceedings were of great importance and that the Constitutional Court was continuing unabated its reform studies in order to cope with the increasing workload, Mr. Arslan continued as follows:

“Foremost among these are the decisions of inadmissibility rendered in a “list-based procedure” that we have recently started to implement in the full sense. With this procedure, we are striking out the applications the subjects of which are similar to those of the applications we have already declared inadmissible, in a speedy manner. In addition, with the recent legal amendment, the Compensation Commission, which was established by Law no. 6384, has been assigned to deal with the applications, lodged before 31 July 2018, concerning the alleged violation of the right to be tried in a reasonable time and the non-enforcement of court decisions. In this way, approximately 7.000 applications have been declared inadmissible for non-exhaustion of domestic remedies. However, it must be noted that this amendment is a temporary solution. A permanent amendment may be made in order to render the Compensation Commission fully authorized in this sense.”

“There is ambiguity in the judicial decisions”

President Mr. Arslan, mentioning the concept of quality that is one of the two main problems of the judiciary, pointed out the ambiguity in the wording of decisions.

Noting that decisions were formulated with quite long sentences, which impaired the clarity of decisions, President Mr. Arslan mentioned his advices to the rapporteur judges “Do not form a sentence which cannot be translated into a foreign language. Use short sentences in a plain language that may be comprehended by everyone. Our decisions must not be in the form of a medical prescription which can be merely read and comprehended by pharmacists. Court decisions inevitably contain technical legal terminology, which does not nevertheless pose an obstacle to their formulation in a comprehensible manner”.

Mr. Arslan, stating that the reasoning in a significant number of judicial decisions could not be comprehended for not being expressed clearly, informed that violations found with respect to the right to a fair trial mainly concerned the right to a reasoned decision.  

“Judicial reform necessitates a sustainable, enduring, decisive and collaborative working process”

Stating that in the judiciary, all decisions/findings were to be taken frankly and by making self-criticism and without being involved in institutional bigotry, President Mr. Arslan expressed that it was exactly the aim pursued by this meeting.

He ended his words “Lastly, it must be noted that it is not easy to resolve all matters of the judiciary within a short time. Nor is there a magic wand capable of doing so. In this respect, judicial reform necessitates a sustainable, enduring, decisive and collaborative working process”.

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