Judicial reform packages introduced in Turkey in recent years, though not without their merits, have barely changed anything substantial in the judicial culture, Lawyer Baran Doğan says
“Draft Law on Amending the Criminal Procedure Code and Certain Laws,” or more commonly known as the “4th Judicial Package,” introduced by the government to the Parliamentary Justice Commission, was adopted by the Parliament this past week, and thus was enacted into law.
The 27-article law introduces a number of provisions concerning access to the judiciary, judicial control measures, violence against women and investigation procedures.
However, before delving into the details of the latest package, it is worth taking a brief look at Turkey’s recent judicial reform history.
Since the founding of the Republic of Turkey, there have always been concerns that the mission imposed on the judiciary has pursued the aim of protecting the state and the interests of the state, rather than safeguarding the rights and freedoms of its citizens. While the judicial system, in its current form, fails to satisfy the public’s need for justice, the judiciary has become a grinding wheel where rights and freedoms are ground, especially during times when the state’s reflex to self-protect kicks in. For this reason, Turkey has long felt the need for a radical reform in the administration of justice despite the occasional steps taken in that regard.
A significant indicator of the aggrievement of individuals brought on by the judicial system is the European Court of Human Rights (ECtHR or the Court) judgments where the Court has found violations. As of 1 January 2021, Turkey ranked second after Russia with 11,750 applications lodged with the Court against it, in terms of the total number of applications pending before the ECtHR.
Between 1995 and 2020, the ECtHR delivered a total of 3,331 judgments against Turkey. A majority of these judgments concerned the right to a fair trial, the right to liberty and security, and the length of the judicial proceedings.
Despite the overwhelming number of violations found by the Court, the steps taken thus far to remedy the existing defects in the Turkish judicial system have often been “unplanned” and to the extent of “dressing the wound” to propose “solutions to urgent matters.”
Judicial reform in Turkey since the 2000s
After Turkey was granted the status of an applicant for membership to the European Union (EU) in 1999, the first footsteps of strategic reforms in the judiciary began to be heard. In 2004, declaring that Turkey sufficiently fulfilled the Copenhagen criteria, the EU decided to officially open accession negotiations with Turkey. In the process, EU officials asked the Justice Ministry to develop a strategy plan with a view to strengthening the independence, impartiality and effectiveness of the judiciary in Turkey within the scope of Chapter 23 entitled “Judiciary and Fundamental Rights,” and submit it to the European Commission.
The ministry therefore set up a commission to undertake the task in 2008 and prepared the Judicial Reform Strategy Action Plan, which included 10 aims addressing key topics such as “Strengthening the independence of the judiciary” and “Enhancing the impartiality of the judiciary.”
In addition to the reform concerning the functioning of judicial institutions, there was another wave of reforms in 2010 that brought about a transformation in the structure of high judicial bodies in particular. The Turkish government, at the time, brought forward the amendment of the Constitution in 2010, relying on the discourse of a transformation “more up-to-date, pluralistic and in keeping with the principle of the rule of law” in high judicial institutions, which are among the pillars of the tutelage regime as per the mission imposed on them, as discussed earlier.
Following the constitutional referendum, in which the majority of the electorate voted in favor of the proposed amendments, significant changes were introduced to the membership structure and the election procedures of the Supreme Council of Judges and Prosecutors (HSYK) and the Constitutional Court (AYM).
In this process, the newfound role of the justice minister in the council, the HSYK elections and the dismissal of prosecutors in certain high-profile cases caused public debate about the independence of the council, which was purported to become more pluralistic. Besides these, with the 2010 Constitutional amendments, the individual application to the Constitutional Court was introduced, and new institutions such as the Ombudsman Institution were established.
In 2012, the Judicial Reform Strategy was updated by the Justice Ministry on the grounds that 70 percent of the goals had been met. Among the 11 aims set out in the new strategy plan were “the prevention of human rights violations arising from judicial practices and legislation” and “strengthening human rights standards.”
The judicial packages, first introduced in Turkey in 2011, were soon prepared and passed into law with the aim of protecting fundamental rights such as freedom of expression, the right to a fair trial, and the right to liberty, as well as speeding up legal proceedings.
The reasons for the preparation of judicial packages, in general, fell under two categories. First, to accelerate justice and to shorten the trial period; and second, to improve human rights, especially the right to a fair trial, freedom of expression and the press, and the right to liberty and security. ECtHR judgments against Turkey were particularly taken as reference for the development of judicial packages.
Even though the government introduced four judicial packages in this process, the impartiality and independence of the judiciary in Turkey continued to be a hot topic. There has been a serious backsliding in respect of fundamental rights, such as freedom of expression and the right to privacy. The situation went from bad to worse due to restrictions imposed within the scope of the State of Emergency (OHAL) declared in the aftermath of the attempted coup of 15 July 2016.
In November 2016, the European Parliament voted for a nonbinding resolution demanding that the European Commission suspend EU accession talks with Turkey due to the “disproportionate repressive measures” taken by the Turkish government following the failed coup. On 13 December 2016, the Council of Europe decided that no new chapters would be considered for opening in Turkey’s accession talks under the prevailing circumstances.
In 2017, EU officials laconically stated that planned Turkish policies at the time violated the Copenhagen criteria for EU accession.
On 26 June 2018, the EU General Affairs Council noted that Turkey was moving further away from the European Union, asserting that the Council was “especially concerned about the continuing and deeply worrying backsliding on the rule of law and on fundamental rights including the freedom of expression,” and that Turkey’s accession negotiations therefore effectively came to a standstill.
Judicial Reform Strategy Document comes out 45 days after the EU warning
After a four-year hiatus, the Association Council held a meeting in Brussels on 15 March 2019. The EU called on Turkey to urgently abandon practices that had a negative impact on the independence of the judiciary, the rule of law, human rights, and fundamental rights and freedoms.
On 30 May 2019, exactly one-and-a-half month after this meeting, the Justice and Development Party (AKP) government announced the Judicial Reform Strategy Document, which was declared to have been developed for the purposes of alignment with the EU acquis, and which consisted of nine aims, 63 objectives, and 256 activities.
To date, three judicial packages have been ratified by the Turkish Parliament as part of the Judicial Reform Strategy Document. These judicial packages included a host of provisions in many areas, including the return of passports to those who were dismissed from government service under emergency decrees, but were eventually acquitted; the expansion of free expression; limiting the pre-trial detention period; the acceleration of legal proceedings; trial periods; mitigation, and personal actions.
Law Amending the Criminal Procedure Code and Certain Laws
The latest addition to the series of reform packages was the draft law widely referred to as the “4th Judicial Package,” which envisages new provisions in seven separate laws, to the Justice Commission. The 27-article package was brought before the Parliament for discussion on 6 July 2021 and was adopted by the Plenary on 8 July.
The package introduces the condition of “concrete evidence” as regards the detention for “catalogue offenses,” which include terrorism, genocide, crimes against humanity, intentional killing, and sexual harassment of children.
The package also reforms the judicial control system. According to this, every two days spent under the “house arrest” judicial control measure will be deducted as one day from the final sentence. It also introduces a “vertical objection” method to the supervision of the decisions issued by criminal judgeships of peace regarding detention and judicial control.
In the package, the crimes of intentional killing, intentional injury, torture, and deprivation of liberty committed against a divorced spouse are considered qualified crimes, as in crimes committed against a spouse, and the punishment is accordingly aggravated.
The response time of administrative requests is henceforth reduced from 60 days to 30 days.
To prevent delays in trials and to protect the right to trial within a reasonable time and freedom to claim rights more effectively, administrative courts will issue their reasoned judgment in writing within 30 days at the latest.
Communication tools such as telephone, telegraph, fax and e-mail, as well as the current notification procedure, will be hereafter used in the notification of subpoena orders issued for witnesses who failed to appear in court without an excuse even though duly summoned.
A person who is apprehended outside the working hours upon an arrest warrant issued for the purpose of taking their statement, and who commits to be present before a judicial authority at a specified date, can be released on the orders of a public prosecutor. This provision can only be applied once for each arrest warrant. Anyone who fails to fulfill their commitment will be fined TL 1,000.
The pre-trial detention of a person for catalogue crimes will be predicated on a strong suspicion based on “concrete evidence.” In the decisions regarding the pre-trial detention, the continuation of the pre-trial detention, or the rejection of the request for release, the evidence indicating that the application of judicial control measures in addition to the existing conditions would be inadequate will be shown in the relevant case and will be included in the decision.
Lawyer Baran Doğan: How the judiciary will react matters
Commenting on the draft law, Lawyer Baran Doğan told Expression Interrupted that rather than the amendments introduced with each judicial package, how the judiciary will react to the amendments was more crucial.
Recalling that the Criminal Procedure Code (CMK) required the existence of a strong suspicion for detention orders in respect of “catalogue offenses,” Doğan stressed that the judges, in practice, resorted to detention measure in some cases while in others they didn’t. While acknowledging the amendment, Doğan said it was important to see how the judiciary will react to the new provision requiring “concrete evidence.” He continued: “What are they going to consider as ‘concrete evidence,’ especially in incidents that take place between two people, especially in crimes related to sexual abuse, crimes that are unknown to others and that don’t have any witnesses?”
Doğan added that since the statement of the victim of a crime is considered as concrete evidence according to the CMK, a victim’s statement that is consistent and in line with the normal course of life should again be accepted as concrete evidence.
Doğan stated that the concept of “a strong suspicion” has been ambiguous in practice, and that how the concept of “concrete evidence” is interpreted would determine the way it is implemented.
Doğan asserted that the content of Article 100 of the CMK has become, in a sense, “riddled with holes” in practice, as the provision was previously subjected to a number of additions and deletions in its wording as part of multiple amendments: “The judges interpret the content of the article so vaguely that they execute contradictory practices. The same courts fall to that. A lawyer simply cannot comprehend what kind of an implementation system, what kind of a detention regime there is. Based on the available evidence, a lawyer has difficulty figuring out whether their client will be detained. Because the detention regime is not fully established, there are differences of interpretation. Now, there will be yet another difference of interpretation. There are three types of evidence in the CMK: testimonial evidence, demonstrative evidence and documentary evidence. This will cause a rift in implementation. I don’t think mercy should ever be left to the judge in any way, especially where liberty is concerned. In concrete terms, I think that Article 100 of the CMK should be handled, not through changes in its wording, but in a serious manner, and a proper detention regime should be established.”
“Significant provision, albeit incomplete”
As for the amendment concerning the judicial control system, Doğan stressed that the “house arrest” judicial control measure is essentially an interference with the right to liberty. Previously, the time spent under this obligation was not deducted from the final sentence. Doğan said the amended provision rectified this situation, partial though it may be: “It is not enough that every two days spent at home under judicial control will be deducted as one day from the final sentence; I think they should be deducted in full. Because there is a direct interference with a person’s liberty; you place the person directly under house arrest. So far, it has been unlawful not to consider that time in the deduction of penalty, so it is a positive provision, albeit incomplete.”
Doğan also noted that time restrictions stipulated for judicial control measures were still too long.
According to the provision introduced in the package, the duration of judicial control will be at most 2 years for matters that do not fall under the jurisdiction of high criminal courts. This period can be extended by 1 year in compulsory cases. In respect of matters that fall under the jurisdiction of high criminal courts, however, the duration of judicial control will be at most 3 years, which can be extended for up to 3 years in compulsory cases. For crimes as defined by the second book, section 4, chapters 4, 5, 6 and 7 of the Turkish Penal Code, and for crimes covered by the Anti-Terror Law, the extension period will not exceed 4 years.
“New objection procedure will not make a big difference”
Concerning the provision that introduces a “vertical” objection procedure against detention orders issued by criminal judgeships of peace, Doğan said this too was a positive amendment, although he had his reservations.
Stating that the existing objection procedure was unlawful, Doğan recalled that the vertical objection procedure implemented in the past was considered as somewhat a more secure system but expressed concern that in practice courts will render cursory decisions due to their already heavy workload. “I don’t think it will make a big difference, but this is the right system,” Doğan added.
“New law, old habits”
Doğan argued that the amendments introduced through “judicial reform packages” so far have failed to bring about any extensive changes, adding that the provisions made in the last 10-15 years have not led to any improvement in the judicial culture.
According to Doğan, the judges and prosecutors who implement the judicial packages will feel they can carry out legal practices in accordance with law and their conscientious opinions provided that they feel independent and not under pressure: “For one thing, there is no such sentiment in the judiciary. There is a myriad of issues in Turkey recently. There are the statements made by a mob boss about a certain individual. Not a single prosecutor has acted on the allegations which could well be investigated simply on suspicion of a crime. They could not find it in themselves to do so, and they cannot. There is no such climate. That’s why we call it a matter of interpretation.”
Doğan added: “Now, the Justice Ministry, pervading every single courthouse through chief public prosecutor’s offices, influences prosecutors as well as judges. There is pressure on them, albeit indirectly. This was one of the most important provisions under the Third Judicial Package: The prosecutors were brought under control. No judge or prosecutor currently feels independent. Since there is no such climate, you are now enacting a new law, continuing with the old habits. [The judiciary] will continue to do as they are told. They are neither independent of public opinion nor are they independent of the government. That’s why they drop the ball when making decisions.”
There will be no proper legal system in Turkey as long as people continue to pin their faith on judicial packages, which are, in any form, incapable of remedying the real issue, according to Doğan: “We need to make the following decision: If Turkey wishes to be a state of law, we will enact all the laws as required by the rule of law in a proper and understandable way; in a way that will not further complicate the implementation. We all must make a decision on this. Otherwise, I do not think anything will change with such judicial packages.”