Turkey and the lack of impartiality in the judicial system

Since the failed coup attempt in July 2016 thousands of judges and lawyers have been dismissed or imprisoned
Turkish police arrest pro-Kurdish ex-parliamentarian from the People's Democratic Party (HDP), Sebahat Tuncel, on 4 November 2016 during a demonstration outside the Diyarbakir courthouse

AFP/ILYAS AKENGIN  -   Turkish police arrest pro-Kurdish ex-parliamentarian from the People's Democratic Party (HDP), Sebahat Tuncel, on 4 November 2016 during a demonstration outside the Diyarbakir courthouse

The referendum of 16 April 2017 in Turkey changed the history of the country. The constitutional reform approved by the citizens that day turned the then parliamentary system, created in 1924 by the founder of the Republic of Turkey, Mustafa Kemal Atatürk, into a presidential one. The authoritarian trend of the Erdogan regime and the political repression to which dozens of lawyers, journalists and academics have been exposed since then have threatened the rights and freedoms of the country's citizens and transformed the balance of power. 

In Turkey, the judiciary consists of a system of courts of first instance, the National Court of Appeal and the Constitutional Court. The latter deals with all matters related to the compatibility of laws and administrative acts with the Constitution. However, in certain cases it also has the power to act as the High Court. Only one year after the failed military coup in 2016 that changed the course of Turkey, the Turkish President dismissed a third of the judges and arrested more than 100,000 people.  

El presidente de Turquía, Recep Tayyip Erdogan
REUTERS/DENIS BALIBOUSE - The President of Turkey, Recep Tayyip Erdogan

Repression and arrests have become a constant since then, allegedly because of links to the movement of Islamist preacher Fethullah Gülen (FETÖ) who, according to Turkish President Recep Tayyip Erdogan, was responsible for orchestrating the failed military coup attempt of 15 July 2016. One of the most affected sectors has been the courts. Since that day, thousands of the country's judges and prosecutors have been dismissed or imprisoned, plunging the judiciary into an unprecedented crisis in the country.

The lack of trust in judges and prosecutors loyal to the authoritarian Erdogan government and the continued imprisonment of lawyers has meant that those who want to raise their voices and show their opinions have had to pay a very high price. An investigation by Reuters news agency analyses the lack of impartiality of the main courts in Turkey, through the analysis of several cases such as the Kurdish politicians Gultan Kisanak and Sebahat Tuncel. The trial of Kisanak and Tuncel took place in Diyarbakir, the largest city in south-east Turkey, which is mostly Kurdish. 

El clérigo turco Fethullah Gulen
REUTERS/CHARLES MOSTOLLER - Turkish cleric Fethullah Gülen

During this procedure the judges changed several times, according to their lawyer, Cihan Aydin, who told Reuters that preparing a proper defense was almost impossible in these circumstances because at no point where they aware of who the judge in charge of the case was. "The chief judge was changed up to four times. In each hearing there was a new group of judges, and each time we had to start the defense from the beginning," he said. Despite preparing the defense, the job of the lawyers in these trials was to "teach the judges" who had just arrived at these courts. "It was impossible for the judges to read the thousands of pages of the case file, so each time we had to summarize and explain what was in the indictment," he said. This led to the proceedings turning against Kisanak and Tuncel, both accused of terrorism charges, a common charge since the failed coup attempt in 2016. At the time of their arrest both women were in the spotlight for being activists in the campaign for the Kurdish minority. Kisanak, 58, an experienced journalist, had recently been elected mayor of Diyarbakir. Tuncel, 44, was a legislator in parliament representing an electoral district in Istanbul. At the trial they were accused of disseminating terrorist propaganda and of belonging to the Kurdistan Workers' Party (PKK). The sentences for these charges were 14 and 15 years respectively, according to the investigation prepared by Reuters. 

Turkish authorities insist that changes of judges and lawyers are "routine", for health or administrative reasons. However, following this failed coup d'état, more and more lawyers and activists agree that it is very common to change judges during a trial. Lawyers interviewed by Reuters see this as a way of exercising control over the courts. "The constant remodelling of judges is a simple but very useful mechanism," said Gareth Jenkins, an Istanbul-based political analyst.

Cihan Aydin, abogado y presidente del Colegio de Abogados de Diyarbakir, participa en una protesta frente al Palacio de Justicia de Diyarbakir, Turquía, el 14 de febrero de 2020
PHOTO/REUTERS - Cihan Aydin, lawyer and president of the Diyarbakir Bar Association, takes part in a protest outside the Diyarbakir Palace of Justice, Turkey, on 14 February 2020

President Erdogan's authoritarianism has found in the judiciary a tool to pursue its ambitions. The thousands of judges and prosecutors who have been dismissed since the coup have been replaced by young, inexperienced graduates. At least 45% of Turkey's approximately 21,000 judges and prosecutors now have three years' experience or less, according to estimates made by the Reuters news agency based on data from the Ministry of Justice. 

"We are not claiming that the judiciary was independent of governments before. However, a period like this in which the government wields the judiciary as a sword in politics and especially the opposition is unprecedented," Zeynel Emre, a legislator from the main opposition party, the People's Republican Party (CHP), told Reuters. For his part, the president of the Istanbul Bar Association, Mehmet Durakoglu, warns that by using the judiciary as a political instrument to judge its opponents, the Erdogan government "has achieved what it could not do by political means" through the elections. 

Palacio de Justicia en Estambul, Turquía
PHOTO/AP - Palace of Justice in Istanbul, Turkey

The current Turkish leader is not only the man with an excessive ambition, as he shows with his participation in conflicts such as the one in Libya or Syria, but he has been able to design a policy that will mark the future of the region. The heart of Anatolia has been dominated for almost two decades by Erdogan, who exercised his power first as prime minister, from 2003 to 2014, and since then, as president. Fear has conquered every corner of the country on the Bosphorus, a country led by an Executive that does not tremble when it comes to applying campaigns of repression. 

The pro-Kurdish People's Democratic Party (HDP), the second largest opposition party in the Turkish parliament, has repeatedly claimed that thousands of its members and supporters have been arrested or imprisoned since the collapse of the peace talks between the Turkish authorities and the PKK. Among them is the party's former co-leader, Selahattin Demirtas, who has been detained since 2016 on terrorism charges that he denies. Furthermore, just a month ago, this party denounced the dismissal of several of its mayors in Turkey on charges of involvement in corruption. "One would hope that the anti-Kurdish evil that marks the heart of the Turkish political establishment would cease to exist at least in these times of a coronavirus. However, this has not been the case," they said in an official statement. 

La policía antidisturbios turca rodea a los manifestantes durante una protesta tras el juicio del alcalde destituido Selcuk Mizrakli, frente al Palacio de Justicia en Diyarbakir, Turquía, el 10 de febrero de 2020
PHOTO/REUTERS - Turkish anti-riot police surround demonstrators during a protest after the trial of deposed mayor Selcuk Mizrakli in front of the Palace of Justice in Diyarbakir, Turkey, on 10 February 2020

Erdogan has been able to create a presidentialist system, in which he, as the country's "strong man", has the authority to control the three branches of government. The HDP has denounced that, because of this situation, the lawyers who defend those who are part of his party have also been prosecuted. The president of the Diyarbakir Bar Association, Aydin, told the Reuters news agency that the practice of monitoring lawyers and activists "is also part of the same trend, the same mentality, of monitoring everyone and making sure there is a file ready against everyone, just in case".  This lawyer believes that whether you "criticize the government" or "become a recognized lawyer" you have a good chance of becoming a target of the Erdogan government. 

However, the purge has not been directed solely and exclusively to the judiciary. The academic world has also been affected. In recent years, dozens of professors or researchers have been convicted of spreading terrorist propaganda or criticizing the Turkish military campaign in the Kurdish south-east, among other reasons. A similar situation is experienced by the hundreds of journalists who have been imprisoned in recent years for reporting. This situation has concerned various international organizations such as Reporters Without Borders, Amnesty International and Human Rights Watch (HRW). The coronavirus pandemic has led these organizations to ask the Turkish Government to release the hundreds of prisoners imprisoned for raising their voices and showing a different opinion to that of the government. "We are concerned that journalists, human rights defenders and others imprisoned merely for exercising their rights remain behind bars because of some policies implemented by the Erdogan government," Reporters Without Borders said in a statement. 

Oficiales de policía turcos bloquean una carretera hacia la Plaza Taksim durante las protestas del Día de Mayo en Estambul, el 1 de mayo de 2020
PHOTO/EMRAH GUREL - Turkish police officers block a road to Taksim Square during the May Day protests in Istanbul on May 1, 2020
The consequences of a failed coup d'état

Almost four years after this coup d'état took place, more than 91,000 people have been imprisoned and around 150,000 people have been dismissed for alleged links with Gülen. The arrests have not stopped. For example, the Turkish police launched an operation in February to arrest more than 700 people, including officials and military, who may have links to the movement of Islamist preacher Fethullah Gülen (FETÖ). And with the arrival of the coronavirus pandemic, the government's response has been in the same direction. The Interior Ministry said last week that 402 people had been arrested for having "unfounded and provocative positions" on the pandemic.

Since that tragic night the Turkish authorities have regularly launched arrest campaigns on the pretext of eliminating the community of Gülen, which is paradoxical because the clergyman was a great ally of Erdogan during his first years in power. This purge has threatened the impartiality and the justice system of Turkey. The Reuters news agency reported in its investigation that 3,926 judges and prosecutors were dismissed from their posts last November. Of these, more than 500 are in prison. The president of Turkey's Supreme Court of Appeals, Ismail Rustu Cirit, believes that one of the main consequences is the shortage of experienced judges and prosecutors, he told the Reuters news agency. In addition, the lack of specialized personnel and the constant arrests have increased the workload of the Turkish judicial system. At the end of 2019, around 30,000 people were still awaiting trial as courts try to process the large number of cases related to the coup, Reuters said. 

Discontent in the country's main judicial authorities led 52 of Turkey's 70 bar associations to boycott the opening ceremony of the judicial year last September, an event attended by Erdogan. The choice of venue was seen by these organizations as a lack of separation of powers and a violation of their code of ethics. The ceremony took place at the presidential palace instead of the seat of the Turkish Supreme Court. In the last three years, judicial independence has been seriously undermined. "The judiciary is under pressure from the executive," said the president of the Istanbul Bar Association, Mehmet Durakoglu. "The choice of location shows a total rejection of the teachings on democracy, law and justice. We have no fear or doubt, we see no other solution than to continue to fight," he added.

El 10 de marzo de 2020, los periodistas se reunieron frente al tribunal de Ankara detrás de una pancarta que decía en turco “el periodismo no es un delito”, para protestar por los arrestos de trabajadores de la información
AFP/ADEM ALTAN - On 10 March 2020, journalists gathered in front of the Ankara courthouse behind a banner that said in Turkish "journalism is not a crime", to protest against the arrests of information workers
Failure to respect the principle of impartiality

The dictionary of legal Spanish defines judicial impartiality as the right of every person to a judge who maintains an attitude of neutrality with respect to the object of litigation and the litigants. The increasing workload and the constant arrests led the Turkish Ministry of Justice to announce its intention to increase the number of judges and prosecutors. Figures from the Eurasian nation's Board of Judges and Prosecutors show that at least 9,323 new judges and prosecutors have been recruited since the failed coup. That means at least 45% of Turkey's approximately 21,000 judges and prosecutors have three years' experience or less, according to data collected by the Reuters news agency. 

Hakki Koylu, chairman of the Justice Commission of the Turkish parliament, told Reuters that some judges and prosecutors "have been appointed without proper training". The president of the Cirit Court warned that the designation of judges with less than five years' experience on the Supreme Court of Appeal " presents risks not only to the reasonable length of proceedings but also to the right to a fair trial ". Over the past few months, several organizations have expressed regret that these new judges have limited experience. "I became a penal court judge at the age of 48," Koksal Sengun told Reuters. "Now, after widespread dismissals and new appointments, the average age of judges in some provinces has dropped to 25," he warned. "In my opinion, the minimum age for the criminal court should be 40. Perhaps even higher. This lack of training leaves newcomers with very little emotional and mental experience to cope with this job.  You can't expect much from such a young judge," he argued. 

How far does power go beyond ambition? Erdogan and his executive have given no indication of any intention to change the course of his policy. A lawyer interviewed by the Reuters news agency - who has been awarded for his work in defense of freedom of expression and the rule of law - explained that the young people are chosen for their political connections and have "little life experience, and even less professional experience". "This is an injustice. In the past, we used to investigate judges when they were appointed to a case we represented, and we adjusted our defense according to the past rulings they had made and their political views. Now we don't have to, because we know that everyone is pro-government," he concluded.

Times have changed in Turkey, and the judiciary has been one of the sectors most affected. The future of the hundreds of people who are arrested by the Erdogan regime now depends on inexperienced people with direct links to the government, as Reuters points out. Impartiality and the absence of freedom of expression are two of the characteristics that define the policy of the country's president, a policy marked by authoritarianism and an ambition that seems to have no limits.