A judiciary without rules, justice or a conscience

3 January 2019

A former judge tells the story of his “reassignment” to a commercial court after voicing criticism, asserting that even the post-coup judiciary of the early 80’s was more respectful of the law

by Mustafa Karadağ, former judge

On 26 May 2017,the BirGün daily published an article titled “The Judiciary of Your Majesty,” which I had penned as the head of the Turkish Judicial Union. By the end of that day, I was no longer a judge at the the Ankara 11th Family Court. Instead, I found myself exiled to the southeastern province of Şanlıurfa as the judge of a commercial court.

I was yet to discover that it was not the Presidential Palace that was responsible for my exile, but the Platform of the Judicial Unity, which had pointed to my newspaper article as an excuse for the act. Early in July 2017, 17 more of our colleagues, judges and prosecutors in the Turkish Judicial Union were also sent into exile.

In truth, all of this began with the approval of constitutional amendments on Sept. 12, 2010. The sole target of the 2010 constitutional change was to alter the structure of the Supreme Board of Judges and Prosecutors (HSYK) and the Constitutional Court to put them under the domination of the government. From the very beginning, the government has been against professional organizing among judges and prosecutors — actually, all Turkish governments have always opposed any type of labor organizing among employees, but none has opposed it as much as the current government.

The government bore an even stronger grudge against the organizing activities of judges, prosecutors and police officers. The Judges and Prosecutors Union (YARSAV), the country’s first judges and prosecutors’ organization, faced legal action that sought its closure. Turkey’s first judges and prosecutors’ labor union, Yargı-Sen, was closed in violation of international treaties, while its executives and members were exiled. Later, the Turkish Judicial Union was founded, but that new organization also faced legal action. And while that union has escaped closure, I, as the head of it, along with board members and some other members, have suffered our share of exiles. Some of our exiled colleagues and members had to quit their profession as a result.

The Law on Trade Unions and Collective Bargaining was binding for all except, it would seem, the Turkish state and the government: For them, it was as if the law had been penned for another country.

Article 4688 of the law provided legal guarantees to both the union and its members, but the government refused to take any account of it. The AKP government was immune to the assurances introduced by Article 2802 of the Law on Judges and Prosecutors, the constitution and international accords. In other words, the powers that be knew no limits in terms of unlawfulness and rights abuses.

My colleagues and I thought that it was not right for lawyers – and, of course, judges – to wear religious symbols during hearings due to the constitutional principle of secularism and regulations on clothing for public servants.

But we faced probes and received disciplinary punishments for condemning an attack on daily Cumhuriyet which had published the Charlie Hebdo cartoons in solidarity with the magazine following the attack on the French publication; lent support to the “Hope Watch” campaign in front of Silivri Prison, where former Cumhuriyet Editor-in-Chief Can Dündar and Ankara bureau chief Erdem Gül were kept under arrest for a news report; and defended the independence of the judiciary;  the rule of law;  security of tenure for judges and the right to an independent and free defense.

We are still being threatened with these probes.

Even though the judiciary has never been independent in Turkey, having always suffered harassment at the hands of whoever is in government, it has never faced oppression like it has under AKP rules. Judges, prosecutors and lawyers have never been threatened so bluntly and subject to such meaningless probes, arrests, expulsions or punishments as they are being now.

In times past, judges were never reassigned to other places for the decisions they made or did not make, and they were not reassigned to other courts for failing to arrest suspects who were sent to court with a demand for their arrest or rejecting an objection to release order. 

Even in the times of martial law courts, Turkey had “legal certainty.” Suspects would know that they would appear before a judge when their 45- or 90-day period of detention ended, and if you did not die while “escaping” from a police station, you would either be arrested or released. The judiciary was never so devoid of rules, justice and a conscience.

Presidents of the high courts never accompanied government representatives to the opening ceremonies of irrigation canals or tea-harvesting campaigns. They never buttoned their attire before government representatives. They didn’t rush behind the president or the prime minister, they didn’t wave them goodbye at the gates of their offices. They didn’t stay silent to insults on judicial independence, grovel in front of the president or become middlemen in conflicts of interest.

In contrast to what the Turkish government has been doing, the Recommendation No R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency And Role of Judges underscores the role of judges and other persons who execute judicial power in protecting human rights and freedoms and highlights that the authority and protection of judges is one of the basic conditions to realize an effective and just judicial system. At the same time, it also states that their independence should be strengthened.

According to the same recommendation, the legislative and executive powers should avoid steps that threaten judicial independence; it further states that authorities who assign judges and decide their careers should be independent from the government. In the decision-making process, judges should be independent and free to act without any restrictions, improper influence, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

We must note that the right to a fair trial and freedom of thought and expression — which are guaranteed by the International Covenant on Civil and Political Rights of the United Nations and the European Convention on Human Rights — have been denied to judges and prosecutors in Turkey who have shown the courage to organize and struggle for judicial independence, the protection of the legal judicial process and the rule of law and democracy in this republic.

In line with this, it is necessary to note that huge numbers of people who have been deprived of education and impoverished under AKP rule do not have any demands in terms of justice.

The Council of Europe places a duty on member states to limit the intervention of judicial officials in the decision-making process of judges, protect judges from pressure and guarantee that prosecutors can freely follow up their claims or reject them.

The most remarkable issue about prosecutors is that they should not face any undue pressure, whether during or outside of their prosecution services, and that prosecution activities must be safeguarded under the rule of law.

“Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. Judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens. Their independence is not a prerogative or privilege in their own interests, but in the interests of the rule of law and of those seeking and expecting justice,” reads Article 10 titled “The rationales of judicial independence” of the Consultative Council of European Judges (CCJE) Nov. 23, 2001, Opinion no 1. The article also states that it is the state’s duty to guarantee the independence of the judiciary and judges with domestic standards that reach the highest possible level.

The Constitution also regulates judicial independence, security of  tenure and the independence and impartiality of judges, safeguarding them under the constitution and law.

According to Article 138 of the Turkish Constitution, “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 to 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. No questions shall be asked, debates held, or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial. Legislative and executive organs and the administration shall comply with court decisions; these organs and the administration shall neither alter them in any respect, nor delay their execution.”Article 139 of the Constitution says 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.” Article 140, meanwhile, states that “judges shall discharge their duties in accordance with the principles of the independence of the courts and the security of the tenure of judges.”

Considering that international treaties are also a part of our domestic law, as indicated in Article 90 of the constitution, the Turkish legislation does not suffer any shortcomings, except that the members of the Council of Judges and Prosecutors (HSK) are chosen by the president and their decisions are not subject to judicial review.

The problem we have in Turkey starts here: The legislation is not deficient. There is an extreme problem, however, in that the government does not obey the constitution, the law and international treaties.

If Turkey still claims that it has the rule of law in place, it must be loyal first to its constitution and its law and then the international treaties that it has signed and approved.

Here, however, all members of the HSK, whose decisions are not subject to judicial review other than dismissal from the profession, are appointed by the president and ruling-party lawmakers who themselves are picked by the president; what’s more, the justice minister and the minister’s deputy are also members of the council. Taken together, these are complete violations of the principles I outlined above.

What else violates these principles and rules? 

The penchant of the HSK — whose members are designated by a single person — to change the posts of judges and prosecutors who organize against attacks on judicial independence, even though this is a right safeguarded by the constitution and the law on trade unions, is an open violation. 

Changing the post of the head of a trade union without his or her consent as a means of punishment due to his or her comments on what is happening in the judiciary is one open violation.

Forcing new judges and prosecutors to stand to welcome the president and applaud him at an appointment ceremony is another.

Then there’s the practice of holding ceremonies marking the start of the new judicial year for the Council of State and Court of Cassation at the presidential palace, forcing members to stand and applaud the president, as well as the president’s rebukes against high court decisions he disagrees. The subsequent lack of a response from the high court’s chairs and its members to these rebukes is also a violation. This is a litmus test of judicial independence and the rule of law.

The president’s statements and comments on defendants or suspects who are under investigation are further examples of overt violations. Changing the posts of judges who issued decisions that drew the president’s wrath is another.

Suggestions by the president that “we will not obey the court rules; they are not binding for us” are further violations, as they damage the reputation and authority of judicial decisions.

Making the sons-in-law and children of government representatives parties to ongoing, political trials is yet another.

Forgetting that judicial independence, security of tenure for  judges, the right to a fair trial, press freedom and secularism are democratic institutions — or, rather, musts for democracy; ignoring that press freedom equals people’s right to information; punishing the people who embrace and defend these rights and freedoms; changing the posts of public employees; and threatening them with investigations are all open violations of the principles listed above.

Actually, they are all violations of the basic principles of the secular, social and democratic republic governed by the rule of law.

This article was published as part of “Stories from Justice,” a project supported by the Friedrich Naumann Foundation for Freedom.