2012-02-27

ECHR worried over freedom of expression

ECHR Judge Isil Karakas told SES Türkiye that freedom of expression is the basis of democracy.

By Tulin Daloglu for SES Türkiye in Ankara -- 27/02/12

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The first female Turkish justice at the European Court of Human Rights (ECHR), Justice Isil Karakas, urges Turkish courts to deal with the issues associated with long detention periods and freedom of expression and the press in accordance to the European standards.

"Turkey has the worst record on press freedom and freedom of expression among all the 47 member states of the Council of Europe," she told SES Türkiye in an exclusive interview.

The ECHR received nearly 9,000 applications from Turkey last year, a 50% increase compared to 2010. In this context, the academic turned European judge said there has not been any significant improvement over the last decade on issues of freedom of speech and the media, which constitute core values of European democracy.

Although she recognises that many reforms were carried out in recent years, she does not see them as being enough to create a free society.

"Prior to 2002, there were different laws, but there is now the Anti-Terror Law," she said. Karakas stressed that the judges at the ECHR understand how difficult it is to fight against terrorism.

But she still pointed out that the second and the fifth paragraphs of Article 6 of the Anti-Terror Law, and Article 301 of the Penal Code, use a vague and broad language that tips the scale against freedom of speech.

"In the framework of defining terrorist activity, the terror law talks about propaganda using broad language," she highlighted. People should be free to voice their opinion so long as it doesn't advocate violence or constitute hate speech, she said.

"Article 301 contains such language against insulting Turkishness or the Turkish nation, where it is impossible for one to determine what it is that may insult Turkishness or the Turkish nation," she noted.

Karakas argued that even in the most complicated cases like Ergenekon, a judgment needs to be reached in a "reasonable time". When pushed to define what a "reasonable time" is by European standards, she said, "When looking at the previous ECHR decisions that set a precedent, there is certainly a timeline for even the most complicated cases to be decided. This could be three years."

Karakas explained that the problem is that Turkish judges prefer to keep the defendants jailed. Instead, they could apply other measures forcing defendants to abide by their decision without detention, while the case continues to be heard.

"It's very important for one to be tried in a reasonable time, because you're depriving the person of their freedom," she said, adding that it is a major obstacle for the Turkish judiciary to reach European standards.

Although the normal rule is to enable the freedom of suspects, it is exactly the opposite in Turkey. According to Karakas, almost all defendants are arrested and the trials are held while the suspects are detained.

Still, the judge remains hopeful for Turkish democracy. "In September, people will be able to apply to the [Turkish] Constitutional Court," she pointed out, referring to the third judicial reform package. "We are hoping the Constitutional Court will solve these issues before coming to us."

"If the Turkish Constitutional Court does not decide or find solutions according to the standards of the ECHR, then the problem won't go anywhere," she concluded.

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