PPJ- 1 March 2018
Platform for Peace and Justice has updated its report entitled “Non-Independence and Non-Impartiality of the Turkish Judiciary” which was first published in 2017. Including the recent development pertaining to the judiciary-government relations, the updated version of the report elaborates on the abolition of the rule of law in Turkey.
The report takes a comprehensive look at the non-independence and non-impartiality of the Turkish judiciary. A neutral judicial system plays a vital role in the promotion of democracy and the rule of law. However, this has been abolished in Turkey, with the judiciary becoming increasingly pro-government, effecting all levels of society.
The first section of this report examines the Turkish Judicial Council (HSYK/HSK). The independency and impartiality of the first and second instance courts should be evaluated within the context of the HSK, which assigns and dismisses judges and gives permission to carry out disciplinary and criminal investigations against them. The Supreme Courts, which are the third instance, also have its members assigned by the HSK, with investigations carried out by the court’s own bodies. It has been noted that “The power that controls the HSK can control the Turkish judiciary as well”2. Members of the Constitutional Court are chosen in accordance with the Constitution, and investigations carried out by the Constitutional Court. Sections two, seven, eight and nine of this report scrutinise these courts respectively.
Whether courts are independent can be evaluated by criteria such as the appointment of judges, irremovability during their term of office, existence of guarantees against outside pressures, and appearance of independence (Findlay v. The United Kingdom, § 73). The judiciary must also be independent of the executive; this is explored in section three, whilst section four looks at outside pressures more generally. It is argued that Turkey’s judiciary has become increasingly non-independent and non-impartial since 2013, however this has been exacerbated by the July 15th, 2016 coup attempt. Section five of this report details the effects of this event, and section six looks at the re-establishment of Assize Courts to deal with terrorism and political crimes. Finally, section ten outlines other various other findings about interference in judicial independence.
Overall, the data, findings and events in this PPJ report indicate that all the four layers of Turkey’s courts are not independent or impartial, nor do they meet the provisions of the European Convention on Human Rights. It cannot be said that there is an effective remedy that can be exhausted in domestic law, which is needed for international intervention such as tribunals before the European Court of Human Rights or the United Nations Human Rights Council. PPJ recommends that the merits of complaints to these courts should be reconsidered.