The Turkey Tribunal report: How have the judiciary, HSYK (Supreme Council of Judges and Prosecutors) and lawyers been dealt a blow since 2013?
Umit Kardaş – Feb 08 2022
The Turkey Tribunal (Court) is not a regular court subject to a state’s judicial system, nor is it a treaty or a tribunal established by an international body.
This court, established by civil society and acting as a tool and platform to give recognition, visibility and voice to those whose fundamental rights are allegedly violated, functions as an “opinion court”.
An application is made to the Tribunal to examine extremely problematic incidents or situations that directly affect and seriously concern individuals or groups of individuals and society as a whole, on the basis of the specific legal framework concerned.
The Tribunal then is built around an international network of experts, social actors and academics from different backgrounds and legal traditions known for their high-level expertise.
The Tribunal takes its legitimacy from the independence and competence of its judges and rapporteurs on the one hand, and from the conscientious obligation of witnesses who testify about the facts of clear violations of human rights and the rights of peoples, referring to existing international law documents.
The Tribunal does not have the authority to investigate, and its argument is not binding. For this reason, the final opinion of the Turkey Tribunal serves as a source of information with strong moral authority to raise awareness about the state of human rights in Turkey.
On August 9, 2021, an official copy of all reports and programmes was sent by registered mail to the Turkish Ambassador in Geneva, inviting the Turkish government to submit its observations on the reports. Turkey did not respond to this invitation.
On Friday, September 7, 2021, a second letter was sent to the Turkish Embassy in Geneva, but Turkey did not respond.
“Can the Tribunal consider its final opinion on this issue in accordance with
Turkey’s judicial system, internationally protected standards of independence and impartiality?… Can Turkey’s judicial system consider it a system that provides full access to justice and effective judicial protection in human rights violations?…” are the questions that Turkey Tribunal based its concluding opinion.
The report on the independence of the judiciary and access to justice on which the final debate is based stated that the rule of law began to deteriorate in Turkey in December 2013, and that the coup attempt on July 15, 2016 accelerated the erosion of judicial independence and the decline of the rule of law.
The report reveals that between 2014 and 2016, the Supreme Council of Judges and Prosecutors (HSYK) dealt with the large-scale relocation of judges and prosecutors, the establishment of new courts and the appointment of new judges, and the arrest and detention of multiple judges and prosecutors who accepted decisions disliked by the government or conducted investigations.
It is stated in the report that after declaring a state of emergency on July 20, 2016, state of emergency decrees that changed key legislative provisions for the functioning of the judiciary were adopted, based on one of the state of emergency decrees, the Constitutional Court (in relation to its own members) and the Supreme Council of Judges and Prosecutors (for all lower court judges and prosecutors) were given the authority to dismiss “suspicious” judges and prosecutors on a list approved by the Board (of HSYK) the day after the coup attempt.
The report reveals that the mass dismissal of thousands of judges and prosecutors took place without individual proper charges and minimum procedural requirements, as well as being detained before trial on suspicion of belonging to a terrorist organisation without supporting evidence, were arrested by unauthorized magistrates, and many of them were subjected to mistreatment in prison.
The report states that the State of Emergency has become an excuse to close independent judges’ associations that play a role in maintaining judicial independence and promoting the rule of law, two associations have been closed and the president of one of them has been arrested and sentenced to 10 years in prison, while the largest association thought to be close to the government has not been touched.
The report also documents eighteen Constitutional amendments in 2017 that increased the executive’s influence over the Constitutional Court and changed the electoral and appointment procedures of its members, while in this context, the independence-deprived HSYK largely hired new judges and prosecutors through a non-transparent electoral process and without adequate training, and newly appointed judges were subject to constant mandatory relocation. Although the state of emergency was lifted in August 2018, political control over judges and prosecutors and forced transfers have not been ended.
In 2019, 4,027 judges have been relocated without justification.
As a matter of fact, a joint letter sent to the Turkish Government by the Special Rapporteurs of the UN High Commissioner for Human Rights, which emphasizes that Turkey’s legal framework against terrorism gives the government excessive authority over the judiciary and thus undermines the independence of the judiciary, confirms these findings.
In the final opinion based on the report, it has been said that in early 2014, threats against lawyers and human rights defenders began mainly through the misuse of anti-terrorism criminal provisions, 615 lawyers were arrested after the coup attempt and 1,600 lawyers faced prosecution on terrorism-related charges, and the arrest and detention of lawyers led to difficulty for the detainees to find a lawyer for their defence.
While noting the unjustified limitations of prosecutors’ right to defence in counter-terrorism cases, by suspending attorney-client privilege and preventing detainees from accessing lawyers for a certain period of time; it is determined that reliable evidence supporting detentions, arrests and convictions is often lacking, pre-trial detention and detention has become a type of punishment under the anti-terrorism legislation adopted in 2018, hearings are usually held via video conference or in closed courtrooms, and anonymous witnesses are used.
The report found that the perceived influence of the executive on decisions and the jurisdiction and practice of peace judges established by Law No. 6545, enacted on June 28, 2014, raised concerns, based on extensive powers (such as issuing search warrants, detaining individuals, blocking websites or confiscating property). It is stated that only one judge makes the decisions instead of a high judicial body, that the decisions are reviewed by another single-judge institution, and that general patterns are used in decisions instead of concrete justifications for the individual, preventing access to justice.
In addition, these practices have reportedly been followed in the cases of many lawyers and human rights defenders who have been arrested, detained or convicted since the state of emergency was lifted, while multiple decisions for the release of detainees have not been implemented, and eviction decisions have been quickly reversed following the executive’s comments.
It is clear that these findings shed light on the elimination of the independence/impartiality of the judge and the right to a fair trial.
In a case where I was a defender (as a lawyer) myself, I witnessed that the decisions to release some of the defendants on the same evening were not implemented until late as a result of pressure from the executive branch and the media, and that the defendants were detained by the police for fabricated crimes without new evidence and unlawfully arrested by the court.
More gravely, the court president and members of the court (deciding the release of the defendants above) who issued the eviction orders were transferred and punished within just three days.
The defendants were tried by a new panel in a court set up in violation of the principle of the judge. This legal disaster was the biggest disappointment I’ve had in my 50 years as a lawyer.
I’m going to keep writing on this.