Right to a fair trial regarding Turkish Law of Civil Procedure in consideration of European Convention of Human Rights and the Desicions of European Court of Human Rights

Humans have fundamental rights and freedoms, from simply being a human, prior to being a citizen of a state. In our era, human rights and freedoms exceeded the boundaries of states and became a universal concern. The two closely related principle: the right to a fair trial and the rule of law have a major function in preserving human rights. For human rights can only be preserved as long as individuals have the liberty to apply to courts in the event of a violation of his/her rights and these appeals are addressed and resolved by decisions given in fair trials by independent courts. The right to a fair trial has a fairly wide range of practice. As a fundamental human and judicial right, it's acknowledged and practiced in both criminal and civil procedures of law. In Turkey however, the right to a fair trial is rather studied in means of criminal and administrative law while only a few studies have been made in detail regarding the law of civil procedure. Considering the right to a fair trial is a human right as well as a fundamental judicial principle, it became a necessity to remark the importance of the right to a fair trial, regarding disputes in civil actions. Since the main purpose of this study is to determine the state of the right to a fair trial in civil actions as well as the explanation of the general framework of this right, the study embraces a perspective on procedure of civil law. The procedure of civil law developed under the influence of international conventions with the winds of change that began in the 50's. The European Convention of Human Rights (ECHR) is distinguished among other international conventions in preserving the right to a fair trial, one of the human rights. This statement is based firstly on the authority of the Convention (whereas the Convention has priority over domestic laws and is applied directly in these domestic laws); the second basis is that states have adopted the procedure of individual application to the European Court of Human Rights. (ECtHR) Contracting states of the European Convention of Human Rights have undertaken to assure the preservation of rights, which are defined in the Convention. The mechanism, which supervises if the contracting states are fulfilling this commitment, has been a driving force for the preservation of rights in domestic laws. Since 1987, the year in which Turkey has acknowledged the right of independent application; individuals have been able to apply to the Court claiming their Conventional rights have been violated. This - in a sense - shows that Turkey is under international supervision regarding the right to a fair trial and all the rights preserved by the Convention. The general framework of this study is constituted on the first paragraph of Article 6 of the European Convention of Human Rights; which evidently lays out the right to a fair trial and principles of procedural law. Third paragraph of Article 6 is also taken into consideration, as long as it's consistent with structure of the law of civil procedure and with anticipation of increased effectiveness of actualization of the right to a fair trial. In the first chapter of this study, the historical background and evolution of the right to a fair trial has been analyzed with a blanket approach at first. Secondly, the international conventions, which arose from the concerns about preservation of human rights globally after World War II, have been discussed with a regional approach. Although the main subject of this study is limited to Article 6 of the European Convention on Human Rights, each regional convention (American Convention on Human Rights and African Convention on Human Rights) have been given a look in order to have a general idea on how the right to a fair trial is regulated. In the second section of the first chapter, the field of application of the right to a fair trial is studied. The methods ECtHR applies when determining if an event presents a violation of Article 6 of the Convention have been studied. Although Article 6 of ECHR limits the field of application of the right to a fair trial with civil rights and obligations and criminal procedures, today Article 6 is applied to many disputes in the field of administrative law, based on practices of ECtHR. The Court, while determining if a dispute is in the area of application of Article 6, evaluates if the decision on the dispute will be affecting the applicants civil rights and obligations. These evaluations are independent from domestic classifications of the related right and obligation, therefore when a right or obligation is classified with a civil character by ECtHR, the related matter of dispute will be included in the area of application of Article 6 in all the States Parties of the Convention. In order for a proceeding to be included in the field of application of Article 6, the related right and obligation needs also to be acknowledged in domestic law and the decision process of mentioned dispute should be final in means of related right and obligation. In other words, any claim that is not acknowledged or any claim that cannot be raised and defended on a fair ground in the domestic law will not be included within the scope of Article 6. While evaluating the concept of "Civil right and obligations" independent from domestic law, it is contradictory for ECtHR to pursue a domestically regulated civil right and deserves criticizing. For as much as this pursuit obliterates the independent approach on the concept of civil rights, it also deems the existence of this right dependent on domestic law. In the last section of the first chapter, the assurances which need to be established according to the right to a fair trial are briefly emphasized, although the right to reach a court and the right on execution of judgment, which have been included within the right to a fair trial by ECtHR's practices, are discussed in detail. These assurances are not limited to those listed in Article 6. ECtHR uses its power to interpret the Convention in a liberal manner, including new assurances within the right to a fair trial. The right to reach a court and the right on execution of judgment are such rights derived with this method, which are unquestionably accepted to be tacitly included within Article 6. The right to reach a court is an essential assurance, making it possible for the right to a fair trial used effectively. The right to reach a court connotes any individual's ability to appeal to a court in order to establish legal protection on their rights, without the interference of a formidable obstacle. Also, the right on execution of judgment is established in order to guarantee that a final and binding judgment established in States Parties based on respective domestic laws, will not be deemed ineffective to the prevailing party's disadvantage. This right, developed based on the remark that the execution of judgment stage is an integral part of a trial, serves to the effective realization of the right to reach a court. If the execution of judgment is not assured, it becomes meaningless to reach a court or have a fair trial. In the second chapter, the elements of the right to a fair trial, which are clearly indicated by Article 6, are examined. The scope of assurances provided by Article 6 is fairly wide. The first of assurances listed in Article 6 is a fair and public hearing by an independent tribunal established by law. Second assurance is that such trial must be concluded within a reasonable time. Another element is that a hearing must be public and the judgment must be pronounced publicly. The rule of public hearings can be limited based on exceptional circumstances referred in Article 6. The last element mentioned in Article 6 is that a trial must be fair, equitable in other words. This principle embodies the right to be informed promptly in a trial, adversarial system and equality of arms principles. Although each right studied in the second chapter has the attribute and scope enough for a separate monograph, exclusion of any of these deemed impossible due to the importance of studying the elements of a right collectively. Nonetheless, with concerns of diverting from the core subject, the method designated for studying these rights is the analysis of the rules in Turkish Law of Civil Procedure in consideration of ECtHR's practices. Although the right to a fair trial has not been included in Turkish law until 2001, it's possible to stumble upon elements of this right in either the constitutions of Turkish Republic or various articles in procedural laws. Even so, according to the rule of law principle set out in the second article of Turkish constitution of 1982, the right to a fair trial had a legal basis. The concept found its constitutional basis with an amendment made in 2001, to the 36'Th Article of the constitution, which regulates the freedom to claim rights. The right to a fair trial is not defined in the 36'Th article. The contents of the right will be covered according to the universal standards set out by European Convention of Human Rights. It's not possible come upon a clear rule on the right to a fair trial among the positive regulations of law of civil procedure. On the other hand, it's possible to find the elements of the right scattered through the different articles of the old Code of Civil Procedure. During the preparation phase of Code of Civil Procedure, Law Nr. 6100 which came into effect on 1'st of October, 2011, the law makers' rightful concerns on taking necessary measures to guarantee the fairness of trials, reflected onto the code, many positive steps have been taken in this manner. The new Code of Civil Procedure includes more rules aimed to protect the right, compared to the old code Law Nr. 1086. Even though the right to a fair trial is not regulated either clearly or separately, some basic rights that are classified as elements of the right to a fair trial are regulated under the governing principles of procedure. Such as the right to be informed promptly in a trial (Article 27), principle of publicity (Article 28) and judicial economy principle (Article 30) Even if the efforts on improving the right to a fair trial due to the practices of ECtHR are significant, there are many steps to be taken in order to establish a total assurance on fairness of trials in Turkish law of civil procedure. In order for the right to reach a court to be realized in means of Turkish law of civil procedure, the legal aid system should be improved. It is essential to favor a more flexible approach while investigating if the prequisites for a legal aid set out by law are met so that it will make it easier to reach a court and more importantly it will protect individuals from the threat of losing any right due to a lack of aid. In addition to this, the decision made upon a demand of legal aid should be made available for appeal. A regulation in this perspective will improve the efficiency of assuring the right to reach a court. What should be done in the execution of judgment aspect is that in trials where the state is a litigant, the swift execution of judgments should be secured. The plentitude of rulings against Turkish government given by ECtHR due to the executive organ's incompliance to the rulings of judicial organs indicates the significance of circumventing the administrations bad habits on the matter. There is a necessity of improvement on the independence of judges in means of assurances related to court. The right to a hearing by an independent tribunal is an essential condition that needs to be assured initially in order for other assurances to be established. Further precautions should be taken in order to establish the independence of judicial bodies before the executive organ. The first of which should be the removal of the Minister of Justice and its undersecretary from the Supreme Council of Judges and Public Prosecutors. The minister of justice being the chairman of this council, authorized to make decisions on matters which can affect judges' careers such as approving their judgeship, assigning, transferring them to positions and launching disciplinary proceedings against them, does not raise a reassuring impression on the independence of Turkish judicial system. Some of the precautions to be taken are making the decisions on disciplinary proceedings against judges available for appeal and making judgeship economically desirable. Another element of importance in means of the right to a fair trial and effective legal protection is the right to be tried within a reasonable time. Among individual applications with claims of violation of the right to a fair trial against Turkey, exceedance of reasonable time is the most quantitative. Turkey has been obliged to pay serious amounts of compensations due disregarding this reasonable time principle. The workload of courts is the biggest obstacle in the way of this right. However ECtHR's approach to the matter is clear: temporary obstructions in judicial progress don't imply the government's responsibility if the necessary precautions are taken to resolve these obstructions. But if such obstructions became a structural feature in a state's judicial system, it means that the necessary actions in order to assure he right to be tried within a reasonable time stated in Article 6, cannot be taken. It's necessary to admit that the slowness of Turkish judicial system became a structural feature and it falls in the second category. In order to put an end to this negative state, the number of judges should be improved, evidences and especially expert's reports should be submitted to court in a timely manner and also institutions that can indirectly reduce the workload on the courts such as alternative dispute resolutions should not be disregarded. One of the functional assurances given by the right to a fair trial is the principle of publicity, which includes public hearings as a whole, related persons ability to follow these hearings as a spectator or through the press and public pronunciation judgments. In Turkish law practice, it's not possible to encounter a chronical problem in realization of the principle of publicity. On the contrary, it would be right to improve the means to disclose hearings, corresponding the exceptions of the principle of publicity set out in European Convention. Contents of the right to be tried equitably, last element of the right to a fair trial, is clarified by the practices of ECtHR. The right to be tried equitably consists of three sub-elements, which complete each other. Case parties should be able to get informed and argue on everything that goes into the case file according to the adversarial system. The equality of arms principle, which is a projection of the main equality principle set out by the constitution in procedural law, means the ability for a case party to submit claims to a court, without being in the disadvantage of the opposing party. Also present under this section, the right to be informed promptly in a trial includes being informed on claims made, to be able to reply and if possible present counterclaims and being taken into consideration by the court in a civil action. Since it's not possible to state if a decision given after a proceeding is correct or rightful at a glance, it's important for the public and the case parties' to have a positive opinion on the fairness of a legal proceeding that led to a decision. As a result of a proceeding in which case parties have as much effect on the same resources in presenting their claims and defenses to the court with a chance to affect the decision, the chances fair trial will increase. For this reason, it's essential to deliver the written notices in accordance with its respective code in Turkish law practice to establish the right to a fair trial. In addition to this, the justification of court decisions should be taken more seriously and delicately, reasons should clearly indicate that the court has taken case parties' claims into consideration and decided upon reasoning these claims. The topics of this study have great importance for judges, the real protectors of the rights stated in Article 6. It's primarily the judges' responsibility to ensure the realization of the right to a fair trial and all of its elements. Just as judges, attorneys carry a professional responsibility to materialize the right to a fair trial and push it past theory to make it effective for their clients. Especially attorneys assigned on a legal aid call are commissioned to protect the rights set out in Article 6 for the recipients of their legal aid. Also government agencies, which take a significant part in establishing civil rights and obligations, have to comply with the assurances provided by Article 6. As much as their legibility allows.