The sad state of the higher judiciary in Turkey

We are belatedly attempting to reform the higher judiciary in Turkey, though for a long time we have all known that the crux of the problem in the country lies in the archaic structure and composition of its judicial bodies as well as in the mentality of the judges and prosecutors who run these bodies. The European Union progress reports take clear snapshots of these judicial problems, and the comprehensive legal reform strategy adopted by the government in close consultation with the EU Commission, and surprisingly signed by the all higher judicial branches, maps out what needs to be done.

Well, I guess better late than never. We can all take comfort in what the government has attempted to accomplish with the latest constitutional reform package being pushed through Parliament. The higher judiciary, specifically three branches — the Supreme Court of Appeals, the Council of State and the Supreme Board of Judges and Prosecutors (HSYK) — is now dragging its feet and strongly resisting the action plan formulated by the government. They fear the reforms that will for the first time introduce more plurality, diversity, accountability and, more importantly, broader legitimacy to these institutions will loosen the grip they have held on power for so long.

Can you believe that the HSYK has purged close to 500 judges and prosecutors from office since 1982, when the military force-fed the constitution after the coup? You had no right to appeal HSYK decisions as the board’s rulings are final even through the board is not a court but rather an administrative body dealing with the promotion, training and disciplinary action in the judiciary. The only prosecutor who successfully brought a lawsuit against the HSYK was Sacit Kayasu, who filed his case with the European Court of Human Rights (ECtHR). Kayasu, who tried to launch a case against the military coup generals of 1980 was barred and even stripped of a license to open a private law office. Others chose simply to fade away as they were afraid that the HSYK’s wrath might also target their loved ones or relatives.

No wonder the public has lost confidence in the higher judiciary, which was seen as acting more and more on ideology or political positions than on the impartial rule of law. Recent statistics from the Justice Ministry show that the judiciary was subject to a barrage of complaints; in no other public agency are there complaints against more than half of the staff. Although we have about 11,000 judges and prosecutors in a country of 72 million residents, in 2009 complaints were filed against 5,381 of them. This confirms the findings of a recent public opinion poll that suggest half the Turkish public does not trust the judiciary.

On the transnational level confidence in the Turkish judiciary is also nonexistent, as we can see from the wording of the EU Commission reports and comments and critical analysis voiced by the Council of Europe advisory bodies, especially the Venice Commission and the European Consultative Council of Judges. According to the latest ECtHR statistics released in January, Turkey is the worst violator of human rights in the court rulings and ranks second in the number of cases brought to the attention of the court after Russia.

Much credit for this goes to the Turkish higher judiciary in that it is supposed to filter these cases and rule in line with the articles of the European Convention on Human Rights. We are signatory to the convention and as such it is the law of the land, equivalent to the constitutional charter in Turkey. If there is any conflict between domestic law and the convention’s articles, the latter should prevail according to the Turkish Constitution. That has hardly been the case in practice, unfortunately. We are now hoping the introduction of the individual’s right to complaint to the Constitutional Court will help reduce the caseload going to the ECtHR.

Even international investors shy away from putting Turkish courts in their contracts as arbitrators in the event of disputes in business deals. They would rather go to international mediating bodies located in Paris as referees. I don’t blame them, considering a simple land dispute in which my mother was involved in her village took over 15 years to settle after costly and lengthy trial proceedings. Now I am one of those who firmly believe in the motto that justice delivered late is no justice at all. My mother’s case may have constituted violation of Article 6 of the European Convention on Human Rights, but she had to go through all the appeals processes in the archaic higher judicial bodies in Turkey to exhaust the domestic remedies, which would have undoubtedly created more pain and grief in her wisdom years. So she simply gave up like millions of others in Turkey.

It seems to me that approving reforms in the higher judiciary is the easiest part. Let’s say we have successfully implemented the changes of the composition and structure of the higher judicial bodies. But how do you go about implementing changes in the mentality and thought processes of judges and prosecutors who will rule on the cases in the end. When I asked Estonian President Toomas Ilves this question last week, he suggested training judges and having seminars on legal reforms. The EU in cooperation with the Council of Europe is actually trying to do that. They have just announced a 3.3 million euro program for exchanges and training seminars. Seeing how the older generation of judges and prosecutors is adamant against accepting any changes whatsoever, I pin my hopes on the younger generation. The EU should be wise enough to spend money on the younger judges and prosecutors as they are the ones who offer the most promising prospects for Turkey.

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