Saturday, November 15, 2008

ECHR Decision Means Major Changes for Judicial Review

From TDZ:
European Court of Human Rights ruling on Thursday that the right to freedom of expression of a former Turkish prosecutor had been violated when he was disbarred for attempting to prosecute the leader of a coup is likely to open the decisions of Turkey’s Supreme Board of Prosecutors and Judges (HSYK) to further judicial review, experts say.

The European court unanimously held that there had been a violation of freedom of expression in the case of former prosecutor Sacit Kayasu, who was removed from his job because he filed a court case against Kenan Evren, the leader of Turkey’s 1980 military coup. The decision is first expected to give Kayasu his old job back and, secondly, to open other HSYK decisions to judicial review.

According to professor of law Mustafa Şentop Thursday’s decision was very significant. “Earlier, appeals against HSYK decisions were mostly about discipline procedures. This one was entirely a human rights issue. They have made the right decision. This should have major effects. First, a reversal of the HSYK decision. That is, returning Kayasu’s right to practice law and, second, it should open HSYK decisions to judicial appeal in Turkey -- and not just the HSYK, but also other agencies, such as the Supreme Military Council [YAŞ], whose decisions cannot be appealed,” Şentop said.

. . . .

In a statement regarding its decision, the European court observed the "possibility of prosecuting the instigators of the coup d'état of Sept. 12, 1980 and the Constitution, which had been adopted following a referendum in November 1982 and was still in force. This was unquestionably a debate of general interest, in which the applicant had intended to participate both as an ordinary citizen and as a public prosecutor."

The court also stated that the imposition of a criminal sanction of that nature on an official belonging to the national legal service would by its nature have a chilling effect, not only on the official concerned but on the profession as a whole.

In its verdict the court also questioned the status of the HSYK: "The Court observed that the impartiality of the bodies that had been called upon to review the applicant's objection had been open to serious doubt."
For the ECHR statement, click here. For an earlier interview with Kayasu, click here. Kayasu believes Gen. Evren can still be prosecuted for his role in the 1980 coup.

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