Issue 2017 / Special 2017
Judicial Independence No More: The Step-by-Step Destruction of the Rule of Law in Turkey
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 ErdoÄźanâ€™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, ErdoÄźan
fought back, changing the state structure, especially law enforcement and the
judiciary, to avoid prosecution.
ErdoÄźan 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 GĂĽlen.
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.
project courts â€“ Penal Courts of Peace
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 governmentâ€™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.
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 â€“ 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.
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.
National Security Council and the Red Book
After being elected President,
ErdoÄźan declared the Hizmet Movement a â€śterrorist organizationâ€ť in the National
Security Policy Document (also known as MGSB or the â€śRed Bookâ€ť), which is a
classified document discussed by the National Security Council. On May 12,
2015, the President told reporters, â€śThe judiciary will adjudicate per the Red
Book from now on.â€ť 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. Itâ€™s also not a legal source for law.
About a month after the
Presidentâ€™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
pressure on the judiciary
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 ErdoÄźan declared on April 26, 2015,
that â€śthe HSYK was too late.â€ť The HSYK Chair of the 2nd Office,
Mehmet YÄ±lmaz, publicly apologized for being late. During a rally in GĂĽmĂĽĹźhane
province, Prime Minister Ahmet DavutoÄźlu referred to the adjudications as â€ścoup
attempts against the governmentâ€ť and stated that â€śthey will never be allowed to
put these decisions into practice.â€ť 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
DavutoÄźlu stated, â€śWe have returned (the corruption) case to its owners,â€ť
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 DĂĽndar,
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 ErdoÄźan declared during a live broadcast on state TV channel TRT-1
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 â€śparallel state.â€ť 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 DĂĽndar
and Erdem GĂĽl, Ankara representative of Cumhuriyet,
were arrested on the aforementioned accusations (espionage and supporting a terrorist
organization/parallel state). No evidence was provided, but Can DĂĽndar and
Erdem GĂĽl 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 freedomâ€¦ I donâ€™t abide
by the decision. I donâ€™t respect it either. This is a decision of releaseâ€¦ These
steps taken are not the correct steps.
The lower court that had
originally ruled against DĂĽndar and GĂĽl acted on the Presidentâ€™s advice and
overruled the Supreme Court. They sentenced the journalists to five years in
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 ErdoÄźan had a
meeting with AYM members concerning their decision on Can DĂĽndar and Erdem GĂĽl.
He rebuked them, saying, â€śYour 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
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.
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 lawâ€¦ 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 woundâ€¦ Finally, laws and regulations changing the
structure of higher courts in favor of the executive power filled those courts
with government loyalistsâ€¦ the seizure of judicial organs or the creation of a
dependent judiciary has been successful to a great extentâ€¦ 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
On May 13, 2016, RÄ±za TĂĽrmen, 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 thereâ€™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 â€śparallel structureâ€ť
or the â€śfight with terrorismâ€ť; 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 â€ścauseâ€ť which
is more important than everything else: To establish a new religious-based
authoritarian Turkey dependent on a single manâ€¦
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 â€śterrorist organization,â€ť 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 BandÄ±rma province prosecutor, Ahmet BiĂ§er, 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 Ă–zĂ§elik
and Mustafa BaĹźer 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 SĂĽleyman BaÄźrÄ±yanÄ±k,
Aziz TakĂ§Ä±, Ă–zcan ĹžiĹźman, and YaĹźar KavacÄ±klÄ±oÄźlu 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
â€“ 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
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.