Out of 128 countries, Turkey ranks a poor 107th in the rule of law index of 2020. In the year 2014, it was ranked 59th. These figures reveal a lot about the state of affairs as far as thejudiciary in Turkey is concerned.
To understand why Turkey ranks so poorly in the rule of law index there is a need to understand some of the core tenets of what rule of law is. The rule of law is a conception of the State in which all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts. Under the rule of law, courts thus operate as the ultimate guardians of the respect of the law by public authorities and the State accepts courts’ authority.
These rankings do show that the Turkish state is not a rule of law state. In order to clearly understand this there is a need to take two parameters into consideration. They are
➢ Judicial Independence
➢ Access to justice and effective judicial protection
Judicial independence and rule of law:
Theoretically, the Turkish constitution ensures the independence of the judiciary. Article 9 of the Turkish constitution states that “Judges shall be independent in the discharge of their duties; they shall give judgment in accordance with the Constitution, laws, and their personal conviction conforming with the law. No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions. Article 139 establishes the security of tenure of judges and public prosecutors and stipulates that: Judges and public prosecutors shall not be dismissed, or unless they request, shall not be retired before the age prescribed by the Constitution; nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or a post”.
The deterioration of the Turkish judiciary started in 2014 when the Erdogan government signed an Omnibus Law (Law n° 6526 amending the Anti-terror Law, the criminal procedure code, and various laws) that abolished the special courts set up under the umbrella of art. 10 of the Anti-terror Law, the so-called “liberty judges”, and the special prosecutors, without further prorogations of their operations. These changes occurred while investigations and trials on high-profile cases were going on. Once the law entered into force in March of the same year, special judges and prosecutors were relocated by HSYK (then known as the Supreme Board of Judges and Prosecutors) to other tasks in only 15 days. The number and location of the new courts, their territorial jurisdiction, and judges and prosecutors assigned to the new courts were decided by the HSYK in only 6 days since the entering into force of the law.
After signing this law into force The appointment of judges and prosecutors did not follow a public call for applications; judges and prosecutors were not consulted prior to their appointment; the reasons for their appointment were neither made public nor communicated to them. The HSYK decision about the appointment was not reasoned. However, this was only one consequence of the deterioration.
Between 2014 and 2016 due to the 2014 omnibus law, Under Government pressure, 2014 and 2016, the Council of Judges and Prosecutors continued to engage in large-scale transfers of judges and prosecutors without their consent. In many cases the reason for the transfer was notable. In one case a judge; judges İbrahim Lorasdağı, Barış Cömert and Necla Yeşilyurt Gülbiçim from the Istanbul Court, who released twenty-one detained journalists after eight months of pre-trial detention, were suspended by the HYSK. In another instance, judges of the Istanbul 37th Heavy Penal Court were removed by the Council after the Court released seventeen detained lawyers. There are many examples of such actions that can be given. A June 2016 ICJ report highlights that transfers of judges between judicial positions in different regions of Turkey were being applied as a hidden form of disciplinary sanction and as a means to marginalize judges and prosecutors seen as unsupportive of Government interests or objectives.
If between 2014 ad 2016 there were large-scale transfers of judges, from 2016 onwards after the coup there was large-scale purging of the judiciary. In the immediate aftermath of the coup d’etat, the judicial Council approved a proscription list of 2,745 judges and prosecutors. Between 2016 and 2020 there have been mass dismissals of more than 4000 Turkish judges and prosecutors as well as mass arrests of around 2450 Turkish judges and prosecutors.
The judiciary in Turkey is anything but independent. Laws have stifled the independence of the judiciary, judges have been transferred or suspended, they have been pressured, there has been a purge of the judiciary. None of this has any relationship with rule of law or the idea that law as stated by the constitution and the penal code is supreme. Rule of law is the idea that public powers always act within the constraints set out by law.
Access to justice and effective judicial protection:
The biggest constraint regarding these two points on access to justice and effective judicial protection is a judiciary that is not fully free from governmental pressure.
Since the Gezi protests and even before, in high profile cases the Human Rights Defenders (HRD) and especially lawyers have been a target of the Government.
Vague definition and broad interpretation of Article 314 of the Turkish Criminal Code, which constitutes the basis for the intimidation and detention of hundreds of thousands of people, has been repeatedly found by the ECtHR to be contrary to the Convention principles and arbitrarily applied. Most recently, in its judgment dated 22 December 2020 in Selahattin Demirtas v.Turkey 129 (No. 2) case, the Court’s Grand Chamber observed, in line with the Venice Commission’s findings in its Opinion130 on Articles 216, 299, 301, and 314 of the Criminal Code, that the Code does not define the concepts of an “armed organization” and an “armed group”.
In terms of effective judicial protection, the state is unable to do it because of the arrest of judges and lawyers. Due to the arrests and detention of lawyers and judges, the number of people who can represent victims of abuse of laws and arbitrary arrests is simply unavailable to do so. In the aftermath of July 2016, 615 lawyers were arrested and 1,600 faced prosecution based on terrorism-related accusations. 450 lawyers have been convicted so far to a total of 2786 years in jail, according to “The Arrested Lawyers Initiative”. Among persecuted lawyers, some were presidents (or former presidents) of provincial bar associations. The consequence is long periods of individuals being in jail without any trial. There is also a long period of waiting time for people to get access and judicial protection.
This also a representation of lack of Rule of law is the idea that public powers always act within the constraints set out by law. This is also an affirmation that the judiciary in Turkey is anything but independent.