It is not possible to say that there is an independent judiciary in Turkey, former European Court of Human Rights (ECHR) judge and legal expert Rıza Türmen warned in an interview with the Artı Gerçek website on Monday.
Speaking on the anniversary of the proclamation of World Law Day on 10 July 1967, the legal expert analysed the current state of the rule law in the country and stated that with the implementation of the presidential government system in 2018, all power has been concentrated in President Recep Tayyip Erdoğan’s hands, while the principle of separation of powers has completely disappeared. “There is no possibility of supervision,” he said. “This system can be understood as [characterised by] the unity of powers, not the separation of powers.”
Türmen highlighted Turkey’s low ranking in the World Justice Project’s Rule of Law Index, where it placed 107th out of 128 countries in 2020. Additionally, Türmen noted that according to annual reports by Freedom House, Turkey has regressed from being categorised as a partly free country to being classified as not free in recent years.
Drawing attention to rulings by ECHR, Türmen pointed out that since Russia’s departure, Turkey is the state which has been handed the highest number of judgments for violations. The former ECHR judge noted in particular the ECHR’s rulings on Selahattin Demirtaş, former co-chair of the pro-Kurdish Peoples’ Democratic Party (HDP), and businessman Osman Kavala, finding that Turkish authorities had infringed Article 90 of the Turkish Constitution. Proceedings have been initiated against Turkey for its failure to implement the ECHR’s ruling on Kavala’s high-profile case, the judge added.
Turkey is currently the sole country facing such proceedings, and the outcome could potentially result in the country’s expulsion from the Council of Europe. Türmen argued that this situation demonstrates the extent to which the rule of law has been undermined in Turkey.
Türmen further argued that the lack of an independent judiciary in Turkey has allowed the judiciary be weaponised to suppress opposition voices. He said: “Disregarding ECHR decisions and utilising the judiciary as a tool under the control of the executive branch… When all these factors are taken into account, it becomes evident that the rule of law is absent in Turkey.”
Türmen characterised the legal system in Turkey as a dual system, saying: “It appears as though there is a dichotomy in Turkey. When it comes to divorce or debt collection cases, individuals can go to court, and decisions are made based on legal rules and norms. However, in cases that are somewhat political or that inconvenience the government, the law is not applied. Instead, arbitrariness prevails, and decisions are made by the will of a single entity.”
This issue stems from the judiciary’s ideological alignment with the government, the judge added. He referred to historical instances of extraordinary courts in the Republic of Turkey, emphasizing that special courts have consistently been employed to oppress dissenting voices. However, Türmen further added that the government has never weaponised the judiciary as extensively and profoundly as it currently does.
The legal expert further contested the criminalisation of certain offences in Turkish law, including the offence of insulting the president. According to the expert, such a practice is not observed in any country that upholds the principles of the rule of law. He further questioned the necessity of having a distinct offence that specifically focuses on the act of insulting the president, especially considering pre-existing defamation laws are already in place.
Moreover, the expert criticised Article 301 of the Turkish Penal Code, which makes it a criminal offence to “insult the Turkish nation,” given the law’s potential implications and limitations on freedom of expression.
Türmen highlighted the case of journalist Merdan Yanardağ, who was sent to prison for criticising the continued incarceration in solitary detention of Kurdistan Workers’ Party (PKK) leader Abdullah Öcalan, and stated that the offence of “committing a crime on behalf of an organization despite not being a member” is another type of crime that should not exist in a country governed by the principles of the rule of law.
Even more terrifying than the absence of the rule of law in Turkey is the use of the law for political purposes, the judge concluded, arguing that ensuring the independence of the judiciary is the most immediate step needed toward restoring the rule of law in Turkey.
