The severity of the crisis in the judiciary has become clearer with the Supreme Court of Appeals publicly declaring that it would not abide by the Constitutional Court judgment calling for the release of jailed MP Can Atalay and that it would file criminal complaints against those members of the top court who undersigned the decision

 

 

GÖKÇER TAHİNCİOĞLU*

 

Judiciary has been a long-standing focal point of discussions in Turkey for many years. This is not just due to some of the actions and rulings of the judiciary. Since the military coup of 12 September 1980, in fact, taking a longer timeframe, since the early years of the Republic, there have been efforts by the government to control the judiciary, which have resulted in its controversial status.

 

When it came to power in 2022, the judiciary was one of the most important items on the Justice and Development Party’s (AKP) agenda. The AKP’s predecessor parties, the Welfare Party and the Virtue Party had been shut down through Constitutional Court rulings and Recep Tayyip Erdoğan had been removed from his position as the Metropolitan Mayor of İstanbul due to a sentence he received for a poem he had read. One of the concerns for Erdoğan after his imprisonment and when he started work on founding the AKP was the potential reaction from the judiciary. These concerns increased with the Supreme Electoral Board (YSK) not approving Erdoğan standing for MP in the 2002 elections.

 

In return, Erdoğan set the harmonization with the EU standards for eventual membership of Turkey into the union as one of his priorities once he came to power. Worried about the military and the judiciary, the AKP thought it could make headway through the EU membership process. The judicial rulings during this period often frustrated Erdoğan and the AKP. However, the turning point came in 2008, with the filing of a case for the shutting down of the AKP in 2008 by the Chief Prosecutor’s Office of the Supreme Court of Appeals and the Constitutional Court preventing Abdullah Gül from becoming president a year ago with its historical decision known as the “367 decision.” The AKP overcame the problem with Gül becoming president by holding a general election and narrowly avoided being closed down.

 

The Constitutional Court announced its decision regarding the closure of the AKP on 30 July 2008, after debating the indictment which also called for a political ban on 71 people, including Erdoğan and Gül. The top court determined that the AKP had become a focal point of anti-secular activities; but ruled to impose a ban on receiving aid from the treasury, instead of closing down the AKP, by a single-vote margin.

According to the law at the time, it would have been enough for seven of the 11 members to have voted to shut the AKP down. Six members voted for shutting down, while five voted against. This decision was a turning point.

 

The Gülenist network effect

 

Many crucial appointments had been made in the judiciary before the case for closure of the AKP was filed. Many figures close to the Fethullah Gülen movement were assigned to specially authorized courts and prosecutor’s offices and these figures were given critical duties. Nevertheless, there was constant criticism by the AKP that “the deep state was against them” as the closure case continued.

 

Preparations were afoot. The reason for the preparations became clear after the closure case was concluded, though their causes go back to before the case, to the “367 crisis.” At the time, word in political circles was that a closure case would be filed. The specially authorized prosecutor’s office then began an investigation into grenades discovered in a shanty house in Ümraniye, İstanbul on 12 June 2007. This was how the Ergenekon and Balyoz (Sledgehammer) operations began. For the following four years, Turkey woke up to waves of operations on an almost daily basis. Journalists, officers and scientists were arrested. Almost all of the cases were dismissed after 2013, on the grounds that they had been filed through a “conspiracy”.

 

The 2010 referendum

 

While the government had seized all important positions in the judiciary through its cooperation with the Gülenists, this was not the case with the high judiciary. To this end, a proposed constitutional amendment of historical significance was prepared. The proposal was put to a referendum on 12 September 2010.

 

A provision that would allow those responsible for the military coup of 12 September 1980 to be put on trial was added to the proposal at the last minute with the aim of securing the support of the liberal sections of society, which proved successful. The Gülenists expended even more effort than the government for the success of the constitutional amendments, which were accepted with 58 percent of the popular vote. The Gülenists had difficulty influencing the high judiciary positions due to the structure of the Supreme Council of Judges and Prosecutors (HSYK). With the constitutional amendments, the mandate of the military judicial bodies was limited to offences linked to military duties and the number of members of the Constitutional Court was increased from 11 to 17. A term limit of 12 was brought on members of the Constitutional Court, who could previously serve until retirement. The president was given the authority to appoint 12 members. The membership of the Supreme Board of Judges and Prosecutors was increased to 22. The Minister of Justice and the ministerial undersecretary retained their positions. A rule was established for the president to appoint four members. Seven principal and four reserve members would be elected by judges and prosecutors.

 

This rule was significant for the government and the Gülenists. They could have absolute dominance over the HSYK if they succeeded in the election to be participated by judges and prosecutors.

 

A platform was established to this end. This platform, which also included bureaucrats from the Ministry of Justice, toured the country and held meetings with judges and prosecutors. In the election held for the first time on 17 October 2010, candidates nominated by the government and the Gülen group enjoyed overwhelming success. The door had been unlocked. Members picked by the government could now be appointed to the Supreme Court of Appeals and the Council of State.

 

With the legal amendment in 2011, the number of chambers of the Supreme Court of Appeals increased from 32 to 38 and the number of members increased from 250 to 387. In 2014, the numbers of chambers and members were increased again, to 46 and 516 respectively. Newly-elected members soon rose to crucial positions within the Supreme Court of Appeals.

 

The same happened at the Council of State. With changes put into effect through the same law on 10 February 2011, the number of chambers of the Council of State increased from 13 to 15 and the number of members from 95 to 156. In 2014, the number of chambers further increased from 15 to 17 and the number of members from 156 to 195.

 

With the election of new members to the Constitutional Court, the government and the Gülenists established absolute control over the judiciary. This situation continued until these two confronted each other, which was in turn to be followed by the process of the AKP establishing sole dominance over the judiciary.

 

The 17 December operation

 

The İstanbul Specially Authorized Deputy Prosecutor’s Office publicly launched an operation targeting the government on 17 December 2013. This was followed by the 25 December operation. Four ministers and members of their family as well as many bureaucrats were the targets. The operation signaled that the Gülenists completely breaking off from the government.

 

The government was in great shock. The police officers, judges and prosecutors who had carried out the operation were rapidly removed from their duties.

 

The government also swiftly put into action a strategy to restructure the HSYK membership. New prosecutors and members were appointed. These were followed by undertakings that changed the structure of the HSYK and increased the influence of the Ministry of Justice on the board. However, the structure of the HSYK was set out in the Constitution and the government efforts could not yield the desired impact. The government decided to wait for the election to replace those members of the council whose term would be up. In October 2014, 13,994 judges and prosecutors voted in an election to select the ten principal and six reserve members of the HSYK. In the 2010 elections, figures close to the Gülen movement had stood for election in the list of candidates of the pro-government Yargıda Birlik (Unity in the Judiciary) Platform. This time, the Ministry of Justice was very cautious. Figures close to the Gülenists ran as independent candidates. While candidates of the Unity in the Judiciary Platform won eight seats, “independent” candidates won only two. The government thus obtained the majority and the number required to convene sessions of the 22-member HSYK.

 

The coup attempt and state of emergency

 

One of the main results of the coup attempt of 15 July 2016 was the restructuring of the judiciary. The use of executive decrees under the state of emergency facilitated this. The state of emergency was extended for seven times, so that it applied to the period of two years following the coup attempt.

 

With emergency decrees, the system was almost completely transformed. Expulsions from the Constitutional Court, the Supreme Court of Appeals and the Council of State, the complete overhaul of courts and prosecutor’s offices overseeing terrorism cases and the extension of the powers of judges of peace who have the authority to order imprisonments and wiretapping all resulted in the overhaul of the judiciary.

 

These changes were felt quickly. While the “conspiracy” cases from the time the Gülenists had dominated the judiciary ended in acquittals, there were many controversial operations such as the Cumhuriyet newspaper operation, the Gezi operation and the Büyükada operati̇on.

 

Upon the imprisonment of Republican People’s Party (CHP) MP Enis Berberoğlu as part of a case into the coverage of alleged illegal transfer of arms to Syria on trucks operated by the National Intelligence Agency (MİT), then CHP leader Kemal Kılıçdaroğlu began the “March for Justice” from Ankara to İstanbul.

 

A new referendum

 

The time had now come to the presidential system. Turkey’s transition to a presidential system with the referendum proposal accepted by Parliament on 21 January 2017 had a great impact on the structure of the judiciary.

 

The membership structure of the Constitutional Court was changed, and the number of members fell from 17 to 15 with the abolishing of the Military Supreme Court of Appeals and higher administrative courts under the new system.

 

A new provision established that three members of the Constitutional Court would be appointed by parliament and 12 by the president. The greatest change was brought to the HSYK, which was renamed the Council of Judges and Prosecutors (HSK) with the referendum. Under the old system, the president could influence the appointment of the six of the 22 members of the council. Under the new system, the HSK now had 13 members. The president retained the power to appoint six members, including the minister of justice and the deputy minister, who are members of the council by default. The remaining seven members would be appointed by Parliament. The Council of State, the Supreme Court of Appeals, administrative and justice judges and prosecutors no longer had any role in the appointment of HSK members.

 

These changes were followed by appointments to more than 4,000 empty positions for judges and prosecutors. The recruitment that took place with examinations held on different dates led to claims that appointees were selected from among supporters of the AKP. Soon after, a new provision was enacted to allow for establishment of more than one bar association in provinces.

 

Period of non-compliance with ECtHR judgements

 

The greatest reflection of the new presidential system on the judiciary was the non-implementation or problematic implementation of the judgments of the European Court of Human Rights (ECtHR) and the Constitutional Court. The ECtHR found Turkey to be in violation of the European Convention on Human Rights for carrying out politically motivated arrests in the Osman Kavala and former Peoples’ Democratic Party (HDP) co-chairperson Selahattin Demirtaş cases. Both cases were brought before the Committee of Ministers of the Council of Europe due to the non-implementation of the ECtHR’s judgments ordering immediate release of both Kavala and Demirtaş, after which the Committee initiated the infringement proceedings against Turkey. Thus, for the first time in its history, Turkey faces the risk of being expelled from the Council.

 

Local courts resisted the rulings of the Constitutional Court for the release of defendants such as MP Enis Berberoğlu and journalists Mehmet Altan and Şahin Alpay. The Constitutional Court was only able to secure their eventual releases with special statements and follow-up judgments.

 

With Erdoğan’s appointments, the membership structure of the Constitutional Court changed almost completely. Most controversial among them was the appointment of İrfan Fidan, who was elected a member of the Supreme Court of Appeals while serving as the İstanbul Chief Prosecutor and won the Constitutional Court membership election at theSupreme Court of Appeals without even serving there.

 

Meanwhile, the criminal courts of peace issued thousands highly controversial rulings for imprisonments, wiretapping and blocking access to news.

 

The “disinformation” law and the Constitutional Court

 

Even all this was not enough. The legislation known as the “disinformation” law was enacted in 2022 and an abstract provision calling for the prosecution of those providing false information to the public entered the legal system.

 

Any attempt to understand what is going on today would fall short unless all these developments are also considered. And debates that have been ongoing since the establishment of complete control of the government over the judiciary must be added to the mix as well. That some religious sects are becoming increasingly influential within the judiciary and that a group called the “İstanbul Group” is calling the shots in İstanbul courts are only a portion of these ongoing debates.

 

Furthermore, over the last decade, one can see that the claims of corruption within the judiciary are increasingly being added to the widespread, long-lasting concerns over the politicization of the judiciary.

 

The judicial processes through which some drug lords and gambling gang leaders have been released, the quick release of key figures following police operations, photos showing politicians together with crime bosses implicated in these operations and with persons who have remained untouchable despite public exposure of their offences have been widely talked of in recent years.

 

Over time, in fact, corruption allegations have become more prominent than the debate on the politicization of the judiciary. That there has been a problem that needed to be taken up could no longer be concealed.

 

The publication of the strongly worded criminal complaint by the İstanbul Anadolu Chief Prosecutor against the President of the İstanbul Anadolu Justice Commission showed that the problems were greater than thought. It was followed by counter-petitions and counter-allegations. However, journalists who had already reported on claims some of the people named in this criminal complaint and other members of the judiciary were being prosecuted or investigated under the law on disinformation.

 

The HSK ignored all other claims and merely launched one investigation into the criminal complaint. The opposition’s requests for a parliamentary inquiry into the claims regarding the judiciary were rejected by government and pro-government MPs.

 

It was in such a climate that T24 columnist Tolga Şardan was arrested for reporting that the Presidency requested MİT to look into the matter. While Tolga Şardan was imprisoned, journalists Cengiz Erdinç and Dinçer Gökçe were briefly arrested on the same offense. It was clear that the judiciary treated those who published incriminating claims about its members very harshly. So much so that the court decision ordering Şardan’s imprisonment listed the charge against him as a “catalogue crime” that require an imprisonment pending trial, even though the offense specified in the “disinformation” law is not one. The message is clear: “Do not bring us up.”

 

Şardan was imprisoned for a charge that does not require imprisonment. Following a public outcry, he was released five days later.

 

The Can Atalay crisis

 

However, the severity of the crisis became clearer when the 3rd Criminal Chamber of the Supreme Court of Appeals openly declared in writing that it would not abide by the Constitutional Court judgment ordering the release of jailed Workers’ Party of Turkey (TİP) MP Can Atalay, and that it would file a criminal complaint against Constitutional Court members who undersigned this judgment for overstepping their authority.

 

While the Constitutional Court was frequently criticized by the opposition, it was not welcome by the government either. With Devlet Bahçeli, leader of the government ally Nationalist Movement Party (MHP), already calling for the closure of the Constitutional Court, the government feels the need to restructure it and to limit its authority to receive individual applications. The current crisis has in fact the purpose of removing those decisions that would lay bare the underlying crisis. If the authority of the court to deliver judgments against the established system is removed, then judgments that would reveal contradictions within the system would not exist.

 

Whether the anticipated constitutional amendment will ensure this remains to be seen. However, considering this crisis together with the judiciary’s treatment of journalists, we can easily say that the aim is not the resolution of problems, but making them invisible.

 

 

* Gökçer Tahincioğlu is a journalist and author specializing in the field of human rights and the judiciary. He is currently a columnist for T24 news portal.