Perspectives

  • Issue 2017 / Special 2017



    Judicial Independence No More: The Step-by-Step Destruction of the Rule of Law in Turkey

    Talip Aydin

    Judicial
    independence in Turkey has been dying for a long time, but it was annihilated
    after the July 15, 2016 coup attempt. A comprehensive portrait of how the
    country, once a beacon of democratic hope for the Middle East, lost its rule of
    law requires revisiting the corruption probe of December 2013. This probe
    implicated then Prime Minister Erdoğan’s family and cabinet members; the evidence
    clearly revealed a scandal involving bribery, smuggling, and violations of UN
    sanctions against Iran. Instead of allowing the investigation to proceed, Erdoğan
    fought back, changing the state structure, especially law enforcement and the
    judiciary, to avoid prosecution.

     

    Erdoğan has taken
    many steps to obliterate the rule of law and separation of powers, which are
    the backbone of any healthy democracy. He has done the most damage to the
    judiciary. Any judge or prosecutor assigned to a case pitting the government
    against any opposition groups, but especially against the Hizmet Movement, has
    faced overwhelming pressure from the executive branch to ignore the rule of law
    and side with the government, regardless of the evidence. Any judge or
    prosecutor siding with the opposition groups has been dismissed, and many have
    been arrested and charged with being members of a terror organization, the
    so-called FETO, a name constructed after US-based cleric Fethullah Gülen.

     

    This meddling by the
    government has impacted all levels of the judiciary, from first level judges
    and public prosecutors to military judges, and from members of the State
    Council and Supreme Court of Appeal to members of the Supreme Constitutional
    Court. No judge or prosecutor who has decided in favor of opposition groups,
    and against government claims, remains unpunished.

     

    This article examines
    some of the most egregious abuses of power the Turkish president has committed
    in his brazen efforts to consolidate his authoritarian regime.

     

    Establishing
    project courts – Penal Courts of Peace

    The Turkish
    government has established new project courts (Penal Courts of Peace) just for
    the investigations and lawsuits against Kurdish and left-wing opposition groups,
    and especially for those against the Hizmet Movement, which the government
    blames not just for the coup attempt of July 15, 2016, but for the December
    2013 corruption probe. The judges and prosecutors assigned to these new courts are
    loyal to the government, not the law. Since the Court of Appeals is another
    Penal Court of Peace, there is a closed-circuit system. Hizmet has become the
    main target of these courts, for the media outlets and civil society
    organizations that were affiliated with Hizmet have criticized the government’s
    illiberal policies, as well as its support of groups like ISIS and Al-Nusra. As
    a result, Hizmet members have been harassed, arrested, and had their property
    illegally seized with the help of these decisions.

     

    Restructuring
    the HSYK (the Supreme Council of Judges and Prosecutors)

    After the December
    2013 corruption probe, the government placed great importance on electing the members
    of the HSYK (the Supreme Council of Judges and Prosecutors). The government supported
    the establishment of a group called Yargida Birlik Platformu (YBP – Platform
    for Unity in the Judiciary) before the 2014 HSYK elections. YBP threatened
    independent and opposition candidates, including those who joined YARSAV, a
    rival judiciary platform. In the end, the government-backed group won the
    elections by around 1,000 votes.  Independent
    candidates and YARSAV members have been profiled and almost all of them were
    discharged and/or arrested after the coup attempt. No evidence has been
    provided against them.

     

    While independent
    judges and prosecutors have been targeted and intimidated by the pro-government
    media and HSYK collaboration, the government has recruited its proponents as
    judiciary staff. In order to replace more than 4,000 discharged judges, all the
    interim judges and prosecutors have been assigned to actual duties, regardless
    of the minimum required duration of service.

     

    The
    National Security Council and the Red Book

    After being elected President,
    Erdoğan declared the Hizmet Movement a “terrorist organization” in the National
    Security Policy Document (also known as MGSB or the “Red Book”), which is a
    classified document discussed by the National Security Council. On May 12,
    2015, the President told reporters, “The judiciary will adjudicate per the Red
    Book from now on.” This meant the courts would not adjudicate per the
    Constitution, the laws, and universal norms, but per what is written inside the
    Red Book, a classified document which is not accessible by or known to the
    public. It’s also not a legal source for law.

     

    About a month after the
    President’s instructions, on June 23, 2015, the Istanbul 5th Penal
    Court of Peace issued grounds for arrest to be based on the MGSB. On September 8,
    2015, the Istanbul Anatolian 3rd Penal Court of Peace cited these
    grounds in its decision (2015/2983). Several more examples could be given, and
    they are clear indicators that the judiciary is taking instructions from the
    executive branch.

     

    Government
    pressure on the judiciary

    The government
    publicly intervened when two judges released 63 detainees, mostly law
    enforcement officers who had been involved in investigating the December 2013
    corruption probe. Unhappy with the decision, the HSYK started an investigation
    of these two judges. Nevertheless, President Erdoğan declared on April 26, 2015,
    that “the HSYK was too late.” The HSYK Chair of the 2nd Office,
    Mehmet Yılmaz, publicly apologized for being late. During a rally in Gümüşhane
    province, Prime Minister Ahmet Davutoğlu referred to the adjudications as “coup
    attempts against the government” and stated that “they will never be allowed to
    put these decisions into practice.” Because of pressure from the executive branch,
    the decisions to release the detainees were not put into practice and the two
    judges were arrested. This is the clearest evidence yet of the executive branch
    intervening in the judiciary (Ref:
    Venice Commission Declaration on
    Interference with judicial independence in Turkey, adopted on June 20, 2015
    ).

     

    On May 12, 2015, the
    HSYK dismissed four public prosecutors and a judge. These persons were
    executing the December 2013 corruption investigation. Then-Prime Minister Ahmet
    Davutoğlu stated, “We have returned (the corruption) case to its owners,”
    referring to the dismissed prosecutors and judge. This statement shows that the
    dismissal was not decided by HSYK, but by the Prime Ministry.

     

    On May 29, 2015, Can Dündar,
    Editor-in-Chief of the government-opposed daily Cumhuriyet, reported about an event on January 19, 2014, when MIT
    (Turkish intelligence agency) trucks were stopped trying to transport weapons
    to opposition groups, including ISIS, in Syria. The government claimed these
    trucks were carrying humanitarian aid to Turkomans, but the Cumhuriyet report showed evidence of
    weapons inside the trucks.

     

    Following this report, on May 31, 2015,
    President Erdoğan declared during a live broadcast on state TV channel TRT-1
    that:

     

    These slanders against the intelligence agency, these illegal
    operations, are sort of acts of espionage.  This newspaper is also part of this espionage.
    They give some numbers; what is the source of these numbers? From whom did you
    get these numbers? From the “parallel state.” I gave instructions to my lawyer
    and opened a lawsuit. This is a perception management operation on behalf of
    certain people. The person who wrote this report, I guess, will heavily pay the
    price; I will not let him away.

     

    On November 26, 2015, Can Dündar
    and Erdem Gül, Ankara representative of Cumhuriyet,
    were arrested on the aforementioned accusations (espionage and supporting a terrorist
    organization/parallel state). No evidence was provided, but Can Dündar and
    Erdem Gül were detained for 92 days and were released by a decision of the Supreme
    Court based on freedom of speech, personal freedom, and the right of security.
    After their release, the President declared:

     

    This incident has nothing to do with freedom of speech. This is an
    affair of espionage. For me, media cannot have unlimited freedom… I don’t abide
    by the decision. I don’t respect it either. This is a decision of release… These
    steps taken are not the correct steps
    .

     

    The lower court that had
    originally ruled against Dündar and Gül acted on the President’s advice and
    overruled the Supreme Court. They sentenced the journalists to five years in
    prison.

     

    The Supreme Constitutional Court (AYM)
    has also been targeted by the President and pro-government media over the
    incident with the MIT trucks. According to a Cumhuriyet report dated April 26, 2016, President Erdoğan had a
    meeting with AYM members concerning their decision on Can Dündar and Erdem Gül.
    He rebuked them, saying, “Your decision
    is wrong. Because that matter (the report on MIT trucks) is a national security
    matter. We were expecting that you would decide by considering our
    sensitivities.”

     

    Supreme
    Court, seized

    Dr. Alparslan Altan and Dr. Erdal Tezcan
    were two members of the Supreme Court who voted that the recently established Penal
    Courts of Peace were against the Constitution. On August 4, 2016, they were
    discharged based on Statutory Decree No.667, which was issued during the early
    days of the State of Emergency established after the coup attempt. The decision
    was not based on solid evidence but on the opinions of other members and the social
    circle of the two members. Considering that the Supreme Court discharged its
    own members based on an unlawful Statutory Decree, and with no solid evidence,
    one can conclude that the Supreme Court has lost its independence. From now on,
    applications to it will be ineffective and a waste of time.

     

    The
    judiciary, seized

    Professor of Constitutional Law
    Ergun Ozbudun spoke at the conference on the Rule of Law held by the Freedoms
    Research Association in Istanbul on October 15, 2015. In his talk, he stated:

     

    In recent years, the biggest wounds in our democracy are in the judiciary
    system, judicial independence, and rule of law… The triggering event for
    regression and deterioration is the December 2013 corruption investigation. A
    series of laws intended to cover it up has eliminated judicial independence.
    The first step was the change of laws on law enforcement. Then, the well-known
    HSYK Law, followed by the law establishing the Penal Courts of Peace, which, I
    believe, caused the greatest wound… Finally, laws and regulations changing the
    structure of higher courts in favor of the executive power filled those courts
    with government loyalists… the seizure of judicial organs or the creation of a
    dependent judiciary has been successful to a great extent… The duty of the
    judiciary is not to work in coherence with the executive and legislative powers
    but to check them...

     

    These comments can be viewed as a
    summation of what has happened to the Turkish judicial system over the previous
    30 months.  

     

    Democracy,
    no more

    On May 13, 2016, Rıza Türmen, representative
    from the main opposition-party CHP and former European Commission on Human
    Rights (ECHR) judge, wrote an article on the T24 internet portal. He said:

     

    There is a consensus both inside and outside Turkey that the regime in
    Turkey is not a democracy any more. It is impossible not to see that Turkey is
    being driven off a cliff as there’s no independent judiciary; basic human
    rights like freedom of media and speech, and right of assembly, are constantly
    violated; every criticism is suppressed under the pretext of a “parallel structure”
    or the “fight with terrorism”; there is rampant fear and oppression;  people are dying in a civil war where we know,
    from international experiences and our own, there will not be a winner; the
    cities are evacuated; the country is gradually becoming introverted and buried
    in its darkness. The ruling party also sees it. But they have a “cause” which
    is more important than everything else: To establish a new religious-based
    authoritarian Turkey dependent on a single man…

     

    After
    the Coup Attempt

    Immediately following the coup
    attempt, 2,745 judges and prosecutors were detained based on charges of
    allegedly being a member of a “terrorist organization,” the so-called FETO/PDY.
    All these judges and prosecutors were also simultaneously laid off by HSYK.
    With three HSYK decrees, judges were discharged without any notification or
    right to defend themselves. Approximately 5,000 judges and prosecutors,
    including those from the military judiciary, the Supreme Court of Appeals,
    State Council, Court of Auditors, Supreme Court and other administrative
    courts, have been discharged. Almost all of them have been detained, except
    those who managed to escape the country.

     

    It was immediately clear the lists
    of purged judges were prepared long before the coup attempt. They included the
    name of Bandırma province prosecutor, Ahmet Biçer, who actually died two months
    before the coup attempt. The HSYK had published a letter of condolence on May
    24, 2016. It is understood that the HSYK either forgot to update the list or believed
    the prosecutor was supporting the coup attempt from beyond the grave.

     

    The names of judges Metin Özçelik
    and Mustafa Başer were also in the list, but they had already been detained on
    April 30 and May 1, 2015. As described above, these judges had decided to
    release journalist Hidayet Karaca, head of a Hizmet-affiliated media group, and
    the police officers in charge of the December 2013 corruption investigation.

     

    Public prosecutors Süleyman Bağrıyanık,
    Aziz Takçı, Özcan Şişman, and Yaşar Kavacıklıoğlu were also on the list. These
    prosecutors, who were involved in the investigation into the MIT trucks
    allegedly carrying weapons to Syria, had already been laid off by the HSYK on
    January 15, 2015. It is evident that HSYK had forgotten to remove their names
    from the list.

     

    There are countless more examples
    – like judge Kemal Karanfil, who had applied to the Supreme Court for the cancellation
    of the law establishing Penal Courts of Peace based on their violation of the
    fair trial principle. It is understood that these citizens, and especially
    public servants, were profiled for years by MIT, and files were prepared on
    each democratic and liberal judge, prosecutor, academician, and military or
    civil bureaucrat. The coup provided the pretext for dismissing opponents of the
    government.

     

    The Turkish General Staff reported
    on its website that the coup attempt started on the evening of July 15, 2016,
    and was not completely suppressed throughout the country until 4 pm on July 17,
    2016. If these lists had not been prepared in advance, the HSYK members should
    explain how they could identify the names of these judges and prosecutors, as
    well as private information about them, including their addresses and their
    spouses, by the morning of July 16, 2016, while the coup attempt was still on-going.

     

    Higher courts, seized

    Higher courts have also been
    captured by the government. All the members of the Supreme Court of Appeals and
    State Council were discharged by a law ratified by the President on July 23, 2016.
    Afterwards, 25% of the State Council members were appointed by the President
    and the rest were selected from among pro-government YBP members. In September
    2016, the State Council 5th Office was identified as the court
    overseeing the cases of the dismissed judges and prosecutors. Thus, there is no
    impartial or independent court left in compliance with European Commission on
    Human Rights criteria.

     

    Conclusion