Abstract
As part of its international and domestic legal obligations, Turkey is required to provide available, adequate, effective, prompt and appropriate remedies when human rights are violated. In recent years, Turkey has introduced special compensation regimes as a remedy for particular forms of violation, occurring predominantly on a systemic basis, and which had been repetitively identified by the European Court of Human Rights in its judgments. Although these regimes were designed to prevent systemic violations from recurring in the future, to what extent these regimes are effective in practice and do in fact bring individual justice remain crucial questions. This article aims to explore these questions while examining the main features of the special compensation regimes.
An earlier version of this article was published in the Turkish Reports to the XIXth International Congress of Comparative Law, (eds) R. Serozan/B. Basoglu, Vedat Kitapcilik, January 2015.
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Notes
- 1.
Article 8 of the Universal Declaration on Human Rights (UDHR).
- 2.
E.g. Article 2(3) of International Covenant on Civil and Political Rights (ICCPR); Article 2 of Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); Article 6 of International Convention on the Elimination of All Forms of Racial Discrimination (CERD); Article 14 of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); Article 39 of Convention on the Rights of the Child (CRC); Article 13 of European Convention on Human Rights (ECHR); Article 47 of EU Charter of Fundamental Rights.
- 3.
E.g. Basic Principles and Guideline on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN General Assembly Resolution 60/147, 16 December, 2005.
- 4.
Different terms (e.g. redress, damages) are being used to imply the notion of reparation in different legal systems. For a thorough analysis of domestic remedies for international human rights law violations see Stephens (2002).
- 5.
Basic Principles on the Right to a Remedy, principle no. 18.
- 6.
Ibid, principle no. 19 that reads as follows: “Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property”. For a more extensive treatment of restitution under international law, see Buyse (2008).
- 7.
Ibid, principle no. 21 that reads as follows: “Rehabilitation should include medical and psychological care as well as legal and social services”.
- 8.
Ibid. principle no. 22. e.g. cessation of violations, judicial and administrative sanctions against perpetrators.
- 9.
Ibid. principle no. 23. e.g. investigation, prosecution and sanctioning of perpetrators, human rights education.
- 10.
Article 40 (1) of the Constitution of the Republic of Turkey 1982 (“Constitution”).
- 11.
Article 40 (3) of the Constitution .
- 12.
Article 2 of the Constitution states that the Republic of Turkey is a democratic, secular and social state governed by rule of law. See also Conseil D’Etat of Turkey (Danıştay) Decision, Danıştay 10. D, T.09.10.1995, E.1994/1682, K. 1995/4256.
- 13.
For instance, damages resulting from unlawful confiscation or from industrial and commercial service or from operation of private property belonging to the administration.
- 14.
Güran (2005) 81.
- 15.
As an interesting example, see the decision of Conseil D’Etat (10. D., T. 28.11.1996, E. 1996/3423, K. 1996/7923) in which the claimant complained following the death of her diplomat husband whom was shot dead on his way to his office. In this case, service fault was established as the State failed to provide with an armored vehicle on account of budget constraints despite the diplomat was explicitly shown as a target by extreme groups.
- 16.
Güran (2005) 81.
- 17.
para. 20.
- 18.
Law no. 5233 adopted on 17 July, 2004 and entered into force on 27 July, 2004. On 28 December, 2005 the Turkish Parliament enacted Law no. 5442 and amended several provisions of Law no. 5233.
- 19.
The government deliberately portrayed the law not as a reparation effort for the displacement but rather as a compensation mechanism for all “victims of terrorism”. As stated in the Preamble to Draft Law of 19 April, 2004, the Turkish government stated that the intent of the law was “to deepen trust in the State, to strengthen the State-citizen relationship, to contribute to social peace and the fight against terrorism,” and committed itself to seeing that it was effectively implemented. As further explained in the scope of the Law, payments under the CDTL to the displaced people were intended to cover losses arising from the original displacement, as well as those incurred during the decade or more that these families were unable to return to their property.
- 20.
Chaired by Deputy Governors, these Commissions are composed of six experts on finance, public works and settlement, agriculture, sanitation, industry and commerce, who work in each province, as well as a lawyer appointed by the Administrative Board of each Bar.
- 21.
Law no. 6353 adopted on 4 July, 2012 and entered into force on 12 July, 2012.
- 22.
For an extensive analysis of the implementation of the CDTL, see Kurban (2012) https://www.ictj.org/sites/default/files/ICTJ-Brookings-Displacement-Reparations-Turkey -CaseStudy-2012-English.pdf. Accessed 12 Feb 2015.
- 23.
Decision no. 9239 of the Council of Ministers on 15 September, 2005.
- 24.
İçyer vs. Turkey (inadmissibility decision, no. 18888/02, 12 January, 2006).
- 25.
Human Rights Watch (2006) Unjust, Restrictive and Inconsistent: The impact of Turkey ’s Compensation Law with respect to Internally Displaced People. See http://www.hrw.org/legacy/backgrounder/eca/turkey1206/turkey1206web.pdf. Accessed 12 Feb 2015.
- 26.
Fidanten and Others vs. Turkey (no. 27501/06, 28 June, 2011); Bingölbalı and 54 Other Applications vs. Turkey (no. 18443/08, 28 June, 2011); Bogus and 91 Other Applications vs. Turkey (no. 54788/09, 28 June, 2011); Akbayır and Others vs. Turkey (no. 30415/08, 8 July, 2011). These applications represented four separate groups of cases, each raising different issues. The first group concerned individuals who had accepted friendly settlements but whose compensations were paid with 6–15 months of delay, resulting in up to a 7 % loss of the initial value, and who were not then given payments for default interest. The second group consisted of those who claimed that their applications were rejected unfairly by the commissions, that their emotional pain and suffering were not compensated, or that their pecuniary losses were wrongly assessed. In the third group were individuals who were not granted legal aid to bring a court action. The fourth group was comprised of those who claimed they had missed the statutory deadline for appealing against the commissions’ decisions because they had not been provided with correct information by the authorities.
- 27.
Law no. 5271 adopted on 17 December, 2004 and entered into force on 1 April, 2005.
- 28.
Kürüm vs. Turkey (no. 56493/07, 26 January, 2010).
- 29.
As known, according to Article 5, paragraph 5, of the Convention, “everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”. The right to compensation presupposes that a violation of one of the other paragraphs of Article 5 has been established by either a domestic authority or the Court itself. It creates a direct and enforceable right to compensation before the national courts. In order to amount to an effective remedy, an award of compensation for unlawful detention must not depend on the ultimate acquittal or exoneration of the detainee. The national authorities must interpret and apply their national law without excessive formalism.
- 30.
Altınok vs. Turkey (no. 31610/08, 29 November, 2011).
- 31.
Demir vs. Turkey (no. 51770/07, 16 October, 2012).
- 32.
Adopted by the Turkish Parliament on 11 April, 2013 and entered into force on 30 April, 2013.
- 33.
Following the amendment to the CCP, compensation claims can further be made in two other stages of proceedings: firstly, a detainee would be entitled to request compensation if he/she is prevented from exercising his/her right to challenge the lawfulness of detention in adversarial proceedings. Secondly, it will be possible to make a claim for compensation even if the detention period (which might be considered to be excessive) is deducted from the final sentence.
- 34.
Article 90 of the Constitution .
- 35.
Law no. 6216 adopted on 30 March, 2011 and entered into force on 23 September, 2012.
- 36.
Article 45 of Law no. 6261.
- 37.
As to the introduction date of the individual complaint mechanism, the inadmissibility decision of Hasan Uzun vs. Turkey (no. 10755/13, 30 April, 2013) of the ECtHR must be mentioned. In this case, the final decision of the domestic court (Court of Cassation) was 25 September, 2013, i.e. immediately after the individual complaint mechanism became operative. The ECtHR reiterated that the rule of the exhaustion of domestic remedies was an indispensable part of the functioning of the Convention mechanism. Having examined the main aspects of the new remedy before the Turkish Constitutional Court , the ECtHR found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention. It thus declared the application inadmissible for non-exhaustion of domestic remedies and confirmed that the individual complaint before the ConstCt is a must for the purposes of non-exhaustion rule.
- 38.
Article 50(2) of Law no. 6216.
- 39.
Rules of Procedure of the Court (Anayasa Mahkemesi İçtüzüğü); 12 July, 2012, no. 28351, Art. 79. see http://www.anayasa.gov.tr/files/pdf/ictuzuk.pdf. Accessed 12 Feb 2015.
- 40.
As an interesting example, see the application lodged on account of the loss of lives in the earthquake which hit the city of Van in 2011. In its decision, the ConstCt held that the State failed to investigate whether the legal duties of public officials–e.g. to assess the damage after the earthquake, to determine if buildings have been damaged and if so, evacuate them immediately, and to take measures to give homeless people shelter–were duly conducted, and whether the misconduct arising from the failure to carry out the duties resulted in the death of 24 people. Finding a violation on the procedural limb of right to life, the ConstCt also awarded compensation amounting to 20.000 TL for non-pecuniary damages. (Turkish ConstCt Second Section, B. 2012/752; K. 2012/54, 17 September, 2013).
- 41.
Olcay Koç v. Turkey (no.8362/14; 24 June, 2014).
- 42.
ibid, para. 26–27.
- 43.
After Russia with most applications. This ranking remained the same until the end of 2013.
- 44.
Ümmühan Kaplan vs. Turkey (no. 24240/07, 20 March, 2012).
- 45.
Law no. 6384, adopted on 9 January 2013 and entered into force on 19 January, 2013.
- 46.
Article 2(1) of the Law No. 6384 reads as follows: “This Law includes the applications lodged with the European Court of Human Rights with the allegations that:
-
(a)
the investigations and prosecutions within the scope of the criminal law and the proceedings within the scope of the private and administrative law have not been concluded within a reasonable time,
-
(b)
the Court’s judgments have been executed late or unsatisfactorily, or have not been executed.”
-
(a)
- 47.
Entered into force on 16 March, 2014.
- 48.
Müdür Turgut and Others vs. Turkey (inadmissibility decision, no. 4860/09, 11 April, 2013).
- 49.
Ahmet Erol vs. Turkey (no. 73290/13, 6 May, 2014).
- 50.
Out of these 5,390 applications, 3,086 of them were accepted and 653 of them were rejected. 1,653 applications were pending at the time of given data.
- 51.
Since 2013, there has been a significant decrease in number of pending applications against Turkey . As of September, 2014, Turkey stands as the fifth country-following Russia, Italy, Ukraine and Serbia with over 10,451 pending applications, whereas the number of applications was over 20,000 by the end of 2012. The Court dealt with 9,198 applications concerning Turkey in 2013, of which 9,008 were declared inadmissible or struck out. This drop is a direct result of individual complaint mechanism (Law no. 6216-CCL) as well as the settlement of some applications lodged with the ECtHR by means of paying compensation (Law no. 6384-ECtHRLaw) introduced in the Turkish legal system.
References
Buyse, Antoine. 2008. Lost and regained? Restitution as a remedy for human rights violations in the context of international law. Heidelberg Journal of International Law (Zeitschrift für ausländisches öffentliches Recht und Völkerrecht) 68: 129–153.
Güran, Sait. 2005. Administrative law. In Introduction to Turkish law, 5th ed, ed. Tuğrul Ansay and Don Wallace, 47–84. The Hague: Kluwer Law International.
Human Rights Watch. 2006 (1). Unjust, restrictive and inconsistent: The impact of Turkey’s compensation law with respect to internally displaced people. See http://www.hrw.org/legacy/backgrounder/eca/turkey1206/turkey1206web.pdf. Accessed 12 Feb 2015.
Kurban, Dilek. 2012. Reparations and displacement in Turkey: Lessons learned from the compensation law. Case studies on transitional justice and displacement. International Centre for Transitional Justice (ICTJ)/Brookings-LSE Project on Internal Displacement. See https://www.ictj.org/sites/default/files/ICTJ-Brookings-Displacement-Reparations-Turkey-CaseStudy-2012-English.pdf. Accessed 12 Feb 2015.
Stephens, Beth. 2002. Translating Filártiga: A comparative and international law analysis of domestic remedies for international human rights violations. Yale Journal of International Law 27(1): 1–57.
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Kanzler, Z.O.U. (2016). Special Compensation Regimes for Violations of Human Rights in Turkish Law: A Fast Track Remedy or No Remedy at All?. In: Bagińska, E. (eds) Damages for Violations of Human Rights. Ius Comparatum - Global Studies in Comparative Law, vol 9. Springer, Cham. https://doi.org/10.1007/978-3-319-18950-5_16
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