Turkey: An Opinion.. “Reforms Have Made No Change to Judiciary”

Successive Turkish governments have made several legal changes to bring the country’s judicial system into line with European Union standards, yet the amendments have not had the desired effect, according to a prominent legal expert.

“Five years of implementation and experience show us that legal amendments made in 2005 under the banner of EU reform have not taken us far. The mentality of the judges has not changed in Turkey,” legal expert Köksal Bayraktar told the Hürriyet Daily News in a recent interview.

Bayraktar’s charges come in the wake of an election in which both the ruling Justice and Development Party, or AKP, won close to 50 percent of the vote and 95 percent of the votes cast successfully elected a member of Parliament. Despite the relatively smooth election, the country is facing one of its worse legitimacy crises due to the boycott of two opposition blocks because of the continued incarceration of a number of their deputies.

Questions about the Constitution’s articles on parliamentary immunity, long detention periods and the courts’ refusal to release eight elected parliamentarians have paralyzed Turkey’s legislative process – making the country’s judicial system the target of heavy criticism.

Q: Why have detention and the duration of detention become such a problem in Turkey. Why are the courts so heavily criticized?

A: Whatever the nature of the crime, the outlook of the judges is very negative against the person accused of a crime.

There are around 110,000 inmates in prison. Of those, 60,000 [have not been convicted]. This by itself shows the severity of the situation. In criminal cases, somehow, the judges cannot but not think of detention.

In 2005, a change was made to the penal code and since then the number of detentions have plummeted. The law enumerates what could be considered as a reason to detain a person. It says “could.” But the judges take it as an obligation and they interpret everything listed in the law as a reason to take a person into custody. That’s why there have been too many detentions. On the other hand, detentions require the existence of concrete fact that the suspect can escape or tamper with evidence. But all this is interpreted in an abstract way by the judges. In the cases of those detained parliamentarians, they have to show us what, exactly, they have in their hand to make them think that they can escape; for example do they know that a relative of one of them bought a plane ticket? There is a huge gap between judiciary and liberal-democratic thinking.

Q: A court released pro-Kurdish Sabahat Tuncel from prison after she was elected during the 2007 elections. She was being detained for the same alleged crimes as current parliamentarians who are currently detained. But this time, the courts took a different decision, refusing to release them. How come?

A: Until now, the judicial system used to release elected members of Parliament who were under detention before elections. Tuncel is not the only example. There are two similar cases where incarceration was terminated after election, one in 1950 and the other in 1957. Tuncel is the third example. But looking from a socio-political point, at that time, Sabahat Tuncel was not a very well-known personality. I believe that played a role in her release. Yet today, when you look at the numbers, three in Istanbul and five in Anatolia, it is impossible to say that politics has not played a role. The courts have decided under the influence of current political developments. Their views were under the influence of the position of the party that won the elections, which is against their release.

Q: You are telling us that legal amendments made as part of EU reforms, which were intended to ensure the Turkish legal system reached European standards, did not produce the intended outcome.

A: I personally have never called the legal amendments of 2005 a reform. The implementation and the experience show us that we have not made a big progress. Take the case of the Criminal Courts with Special Jurisdiction. There is no difference between the State Security Courts and Criminal Courts with Special Jurisdiction that replaced them. The only difference is the fact that there are no longer military judges in the courts. Otherwise, the mentality has not changed. After 2005, additional changes were made to at least 70 articles. This by itself shows us that the amendments that were made were not efficient.

Q: The State Security Courts were a target of EU criticism. When the military judge was eliminated before being abolished, the EU applauded the reforms.

A: Unfortunately, the dual structure of the judicial system continued. There are two sorts of courts; normal ones and the extraordinary ones. The extraordinary ones [include] the Criminal Courts with Special Jurisdiction [which are handling the cases of the detained parliamentarians]. The prosecutors of normal courts will not raid your house at 6 in the morning to get your statement. The police have incredible power and the prosecutor has tremendous authority.

Q: Why is there a need to have these special jurisdictional courts?

A: [Because of] the constant fear that we are surrounded by enemies.

Q: Another criticism is that the judicial mechanism is very slow.

A: The judicial system works slowly, that is a general rule. But what is important is that it should function efficiently in order to reach the truth. We need to review the whole system for the judiciary to better function.

July 1, 2011
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SOURCE: Hürriyet Daily News