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The need to hold the Turkish judiciary to account is stronger than ever ǀ View

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Ekrem İmamoğlu’s election as Istanbul’s Metropolitan Mayor in June, following an increased margin of votes in a second poll, highlights the unfaltering determination of the Turkish people to live in a fully democratic state. The Supreme Electoral Council’s contentious decision to annul the original vote is indicative of the current state of Turkish democracy. İmamoğlu’s win has bolstered the mandate of the opposition parties and may pave the way for a change in government. However, for Turkey’s democracy to free itself from the middle democracy trap and move towards advanced democracy - as is the evident will of the people - full accountability within the judiciary must be secured.

It is true that Turkey has established the basic institutions of a democracy and public power changes through elections. However, despite the Turkish constitution codifying a separation of powers and an independent judiciary, this does not in fact exist. In reality, the formation and functioning of the judiciary is dependent on the executive branch, as the members of judicial council are elected by legislative and executive authorities.

In addition to being dependent, the members and the institutions of the judiciary lack accountability and transparency.

Turkey should ensure that the judiciary’s independence is at all times safeguarded and respected. As a first step, however, all branches and elements of the justice system need to be fully accountable and transparent in all acts and decisions taken.
Mehmet Gün
Founding partner of the Turkish law firm Gün + Partners

The administrative decisions of the Council of Judges and Prosecutors, the Supreme Electoral Council, the Supreme Court of Appeals and the Council of State are immune from judicial review, which can be seen as contrary to the “republic, state of law and equality before the law” principles set out by the Constitutional Court in 1977. It is contrary to the basic and fundamental principles of the constitution for judicial remedies against these institutions to be unavailable. Indeed, judicial accountability of the members of these higher courts is entrusted to the discretion and conclusive decisions of the institutions themselves. Thus, members of higher judicial bodies may have lifelong immunity from accountability and will not be held to account for any breach of duty, even for personal offences.

The unaccountability and opaque methods of the judiciary have created a rich environment for coalitions between different forces and judicial bodies to flourish. Judicial power has thus become an instrument of the State, whilst continuing to lose its independence.

As a result, Turkey is facing a dilemma, a paradox whereby the judiciary must be independent but restricting it – however wrong that may be – could be justified because it is not held accountable. This has resulted in a compromise of the judicial accountability in the State’s executive branch.

Currently, judicial oversight in Turkey is needed for the proper functioning of public institutions but this is curtailed, mainly due to its inefficiency. There is a belief that public officials must be liable for their actions but holding them to account is left to their superiors, because the judiciary is seen as untrustworthy. For example, should a civil servant in the executive commit a crime, permission to investigate must be granted by their superiors and ultimately by politicians who are, in turn, not accountable to the judiciary for their own violations of constitution and other laws. It is a vicious cycle.

Accordingly, for Turkish democracy to advance, establishing the accountability of the justice system is of utmost importance. An unaccountable judiciary can rapidly degenerate, neglecting its functions, thereby leaving itself open to becoming an instrument for military, financial and civil power groups to abuse.

This has already been witnessed in Turkey. As established by the 1982 constitution, the judiciary fell under the influence of the military power groups in control of the State and was used to eliminate secular and modern-thinking army commanders. Control of the judiciary then changed hands to the Gulenist Terror Organisation (FETÖ), which infiltrated it and imprisoned members of the administration of the Turkish Armed Forces on the grounds of false and fabricated evidence and anonymous witnesses. Thus, the military’s control over the judiciary was ended and it passed to civilian control.

Following a power struggle with the Justice and Development Party (AKP) and the President Recep Tayyip Erdoğan, FETÖ attempted a “judicial coup d’état” in December 2013 by conveniently timing judicial activities against ministers in the cabinet. They failed and resulted in the organisation’s loss of control over the justice system. In July 2016, Turkey witnessed yet another attempted coup from the same organisation, and since then, approximately 40% of judges and prosecutors have been discharged as a result of their connection to FETÖ. Some have fled from the country and others have been arrested. They were replaced with judges and prosecutors who are deemed trustworthy by the AKP. Accordingly, it is undisputable that the judiciary is currently under the influence of the executive.

The 2017 Turkish Constitutional Referendum and recent municipal elections attracted significant criticism, serving as a stark reminder of the political influence held over the Supreme Electoral Council which is formed by the members of the Council of State and the Court of Cassation. The void created by the lack of checks and balances conveniently provides the perfect breeding ground for political influence and interference in non-executive matters. Evidently, an unencumbered justice system can lead to the restriction of the public’s right to elect their leaders. It is also the root cause of its failure to dispense justice and to ensure the healthy running of democratic institutions and different legal entities.

Therefore, to ensure the rule of law and render the justice system independent in its fullest sense, Turkey must restructure it in strict compliance with the fundamental principles stated in decisions 1985-40/32 and 40/146 of the General Assembly of the UN. It should make it entirely and truly independent from the executive and legislative powers in terms of its composition, and especially its functions to prevent it from being part of the political power struggle.

Turkey should ensure that the judiciary’s independence is at all times safeguarded and respected. As a first step, however, all branches and elements of the justice system need to be fully accountable and transparent in all acts and decisions taken.

Mehmet Gün is the founding partner of the Turkish law firm, Gün + Partners, based in Istanbul

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