The Rule of Law Index for the year 2017 that is prepared by the World Justice Project (WJP) to evaluate judiciary systems of countries in the world, is released.
Turkey’s score in “2017 Rule of Law Index” has dropped two levels down and ranked 101st among the 113 countries. In the index, which categorises the countries according to their geographical location, Turkey ranked last among the 13 countries in the Eastern Europe and Mid-Asia group, while in the upper-middle income group, it ranked just above Venezuela, which ranked last among the 36 countries.
Previously in the same index, Turkey ranked 59th in 2014, 80th in 2015, and 99th in 2016. While Turkey’s decline has continued, in the index, only Bangladesh, Honduras, Uganda, Pakistan, Bolivia, Ethiopia, Zimbabwe, Kameron, Egypt, Afghanistan, Cambodia and Venezuela scored lower than Turkey.
This is the tragic situation that a judicial system, under the rule of a political party that is proud of the “Justice” in its name, has ended up. Most probably we will score the lowest in those categories next year, since the index of the last year did not consider the decisions of the Turkish Constitutional Court (AYM) –the highest court of justice– not to be respected anymore in this country.
As is known, Istanbul Criminal Courts had not obeyed the verdict issued by the AYM decreeing that the rights of Mehmet Altan and Şahin Alpay have been violated. The reciprocations of these decisions, which turned the judicial hierarchy upside down, still continue. Jurists agree that the local courts’ rejection to implement the AYM’s verdict is well beyond being a mere mistake, and displays “the picture of a paralysed judicial system in Turkey”. We now face with a justice system that cannot proceed, cannot function, cannot work, in short, a crippled justice system.
In this writing, we will try to examine the above-mentioned decisions –which demonstrated that Turkish justice is crippled anymore– alongside with some legal regulations and jurists’ opinions.
Istanbul 13th Criminal Court has been the first court that physically resisted to obey the verdict of the AYM and the motion of this court appeared on the press. About its decision to continue detention of the accused (Şahin Alpay), showing the accused person’s columns published on a newspaper as evidence, this local court claimed that the reasons for “detaining the accused” and “denying him from the press freedom” are some “forcing social needs” and “a necessity of a democratic social order”. (1)
The AYM, on the other hand, in accordance with Article 19 of the Constitution and Article 100/1 of the Turkish Code of Criminal Procedures, decreed that the first condition that “necessitates detention of someone” is “the existence of strong evidence showing that person has committed an offence”. The AYM stated that the content of the case file does not reveal what actually those forcing social needs and necessities were, and decided that this violation (unlawful detention of Şahin Alpay) must be ended, because there is not any strong evidence other than the writings published on the column of the accused, which, on their own, do not contain any criminal content.
In reply to this decree of the AYM, the local court first said that, “they cannot issue a verdict before seeing the motive of the AYM,” and stated that they will not carry out the order of the AYM because of the reasons below:
-“According to Articles 49/6 and 50/1 of Law No. 6216, it is not possible for the AYM to put itself in place of a local court and ‘evaluate the evidence’ or ‘check expediency’,
-If we will take the AYM’s decree saying that there is not any hard evidence into consideration, then we need to, not only release the accused persons, but also judge for their acquittal, whilst the AYM entering in the merit of the case this way, is ‘usurpation of authority’.
-The nature of the file is suitable for the hard evidence to be produced in the meantime. However, when these evidence are presented, ‘the rule prohibiting judges to reflect bias’ would be violated.”
It is impossible to agree with these motives of the local court. If we will accept these, then we need to admit that the correctness or effectiveness of all of the decrees that had been issued by the AYM until today, must also be questioned. Indeed, many jurists have not accepted these reasons, the local court put forward, and they criticised the court for its judgement.
At a radio program he joined, former Head of the Court of Appeals Prof Sami Selçuk evaluated this situation as follows: “Today, in our country, there is a confusion of concepts. At present, there are people who are still confusing unlawfulness with usurpation of authority. Law is comprised of concepts. If you don’t know this language, then your judgement will be wrong, as it has been in this case.” (1)
What they meant by “checking expediency” is intervention of one institution into the decisions of another judicial institution by usurping the place of that institution, although it is neither within its authority nor it is its duty. However, Law No. 6216 openly gives the AYM, the authority and the duty of examining and adjudicating the decisions of other courts, when they violate human rights. Although this does not mean that the judicial discretion of judges can be intervened, being the “highest degree court” according to the Constitution and the related laws, the AYM is obliged to evaluate the courts’ decrees based on the evidence. We must also remember that the discretion authority of a judge can be used for evaluation based on certain rules, and in only the situations permitted by the law. (2)
The local court based its decree on also “the prohibition of reflecting bias”. Although Article 24/1 of the Turkish Code of Criminal Procedures mentioned this rule as “…the grounds that raise doubt concerning the judge’s impartiality”, the article does not casuistically specify what these grounds are. In its verdicts related to this principle, the Court of Appeals states in summary that, “A judge’s impartiality is tainted if a judge reveals his opinion or implies the vote/judgement he is going to give about the case he is going to hear”. (3)
When all these explanations are taken into consideration, the reason of the local court claiming that, “I have hard evidence at hand, but I cannot show them, otherwise my decision about the case will be revealed,” is very far from being lawful, moreover, it only indicates a tragicomic situation. While the AYM is trying to see whether there is a violation of right or not, what can it be more natural for it than to check which hard evidence and motives the local court had based its decision of detention?
At this point, former ECHR judge Rıza Türmen’s comment about this decree is significant: “The reason claiming that the AYM does not know the case file is a nonsense argument. In the European Council, there are 47 member states of the ECHR. In none of these countries, judges have said something like ‘I am keeping the evidence confidential.’ If he does not reveal the evidence, he can only judge according to the evidence at hand. Meanwhile, the ECHR is going to adjudicate according to this, too. If you cannot disclose them, then it means that you don’t have such evidence. If you have got undisclosed evidence, how can they file an objection against the decree of detention without knowing what is inside the file?” (4)
On the other hand, the local court has not got the right to reject, or not to implement, the decision of the AYM by using the pretext of usurpation of its authority. In the above mentioned interview, Prof Sami Selçuk said the following about this matter: “The picture displayed by the local court has passed beyond unlawfulness and turned into a crime. The local court has no authority whatsoever to resist against the AYM’s decision. Which authorities can apply resistance in which situations are regulated by the new law. You may never say that ‘I resist, I am not going to implement the decree of the higher court for this or that reason, even if I don’t have such an authority’ despite the law. The situation here is well beyond a mistake and shows that a major crime has been committed by a public official for restricting the freedom of someone unlawfully. Judges at the local court have moved away from impartiality, which is their main duty. They approached the case with rage and have been overwhelmed by their emotions. This is wrong. Judges are obliged to only do what the Law says. According to Article 148 of the Constitution, decrees of the AYM are binding and everyone are compelled to obey them. If you didn’t like the AYM’s decision, the only thing you can do is to sit down and write an article about it, explaining your reasons of objection. You, however, may not criticise the AYM’s decision like you do to any other judicial decree. If you do this, then it means you are exceeding the limits of your authority.”
At this juncture, I would like to accent that we do not agree with the statement of Prof Ersan Şen, he made after the AYM’s decree was heard by the public. Mr. Şen said that, in pursuant to the establishment law and the house regulations of the AYM, it is right for the local courts to see the reasons of the AYM’s decree to be able to make a decision about the violation of right. However, the mentioned laws and regulations state that the norm inspections of the AYM can be publicised as reasoned decisions. For individual applications, however, especially for removing the violations of human rights, there is no such a requirement. On the contrary, because unlawful detention is a very heavy restriction committed against one’s fundamental rights and freedom, it is a legal obligation to immediately remove this violation and take necessary actions to stop the violation continuing any further. Meanwhile, it is out of the question for the local court not to obey after it has seen the reasons of the AYM’s decree. Apart from this, when we consider that it takes a long time for the AYM to issue reasoned judgements, it will not be possible to agree with Mr. Şen’s explanations.
It is not possible, either, to agree with Ersan Şen’s the suggestions he put forward for the local court in his statement. For example, Mr. Şen suggests that, while interpreting or rejecting the AYM’s decision, the local court may ground its decision on the applicant’s position of being a “suspect” or “accused”. In other words, the applicants Mr. Altan and Mr. Alpay were suspects when they had applied to the AYM, but they have become accused on the date when the AYM’s decision was issued. For this reason, he claims, the local court has got the right to resist against the AYM. This thought of Ersan Şen has no ground at all neither in the European Convention on Human Rights, nor in the provisions of the Turkish Constitution. A person’s position is always the same (except for conviction), all the way through from the moment he was deprived from his freedom by the police, until his release. His situation may not be divided as suspect, then as accused.
In the past, we have seen examples where political governments had not recognised the decisions of the AYM or not regarded them as “national”. We are, however, first time witnessing that a local court is resisting against the decree of the AYM. Regarding this situation, former ECHR judge Rıza Türmen said, “Something similar to this had happened in Azerbaijan. When the decrees of their Constitutional Court were not respected, the ECHR have started to directly accept the applications coming from this country. A bizarre occasion such as a lower level court nullifying the AYM’s decrees can only be seen in Turkey. I do not remember any instance like this in the world. This dispute is actually the controversy of a rule of law.” By these remarks, he pointed out that this situation indicates, not only a case, but also the dead-end where our country has gone in.
“Criticisms are raised about the AYM’s verdict from the side of the government,” said Lawyer Benan Molu, exposing the government’s intervention in the judiciary as another voice. “In a judiciary system where they call the courts not to obey the decrees of the AYM, where judges are deposed or dismissed from their profession because of their decrees of release, the judges are scared to issue decrees of release and this hardens up the ongoing human right violations.” (6)
While, Turkey Representative of the RSF (Reporters Sans Frontiéres) Erol Önderoğlu criticised this situation with these words: “With the four crises it had gone in with the Constitutional Court in the last 7 years about the detentions of journalists, the government has shown that the rule of law in Turkey has ceased to exist anymore. If there is no respect to justice in the highest levels of the state, then the case laws and the justice cannot be expected to overrule there.” (7)
On the other hand, Vice Director of YARSAV (Foundation of Judges and Prosecutors) Murat Aydın summarised the situation that our judicial system is currently in: “In a country where even the decisions of the AYM are not implemented, even the possibility of a court to issue a decree that will cause a political controversy, and implementation of such a decree, will be eliminated. This means it is the end of a state of law. In such a medium, security for the Law cannot be assumed to exist, we cannot say that the courts and the Law are the guarantee of the human rights and freedoms. In such an environment breathing cannot be possible.” (8)
Especially after the July 15 coup attempt, hundreds and thousands of civil servants, thousands of judges and prosecutors have been dismissed from their profession without even taking their defence, and thousands of them have applied the ECHR because they have been kept under custody without any trial for a very long time. Despite the fact that the applicants have been stating that there is no domestic judicial authority left to be applied in Turkey and all of the judicial system has been paralysed by the political government, the ECHR still rejected their applications for the reason that they had not exhausted all domestic remedies and directed them to the AYM and the OHAL (State of Emergency) commission that is founded by the government itself.
The statements of the OHAL Commission have disclosed that the victimisation of many people still continues in the country. With its latest decrees that have not been respected by the local courts, the inefficiency of the AYM has been more apparent. Although we understand that the ECHR’s approach is merely because of its worry of facing a huge work load, since it is once more –this time by local courts– proven that there is no properly functioning judicial system is left in Turkey, we still hope that the ECHR will finally realise its responsibility and accept all the applications by recognising that the domestic remedies of Turkey are not effective anymore.
(3) Yılmaz, Ejder, Hukuk Sözlüğü, 3.Baskı, Yetkin Yayınları, Ankara, 2005, s.253.
(4) Yargıtay 1.CD 16.04.2008, 1009/3051