Back Turkey needs to put an end to arbitrariness in the judiciary and to protect human rights defenders

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Caglayan Justice Palace, Istanbul - © OVKNHR /

Caglayan Justice Palace, Istanbul - © OVKNHR /

“Turkey must take urgent and necessary measures to re-establish trust in its judiciary and repair the damage inflicted on the rule of law during the state of emergency and its aftermath”, said Dunja Mijatović, Council of Europe Commissioner for Human Rights, at the end of a five-day visit to Turkey. 

The Commissioner stated that the independence of the Turkish judiciary has been seriously eroded during this period, including through constitutional changes regarding the Council of Judges and Prosecutors which are in clear contradiction with Council of Europe standards, and the suspension of ordinary safeguards and procedures for the dismissal, recruitment and appointment of judges and prosecutors. As a result, “the existing tendency of the Turkish judiciary to put the protection of the state above that of human rights was significantly reinforced, and the criminal process appears to often be reduced to a mere formality, especially in terrorism-related cases. In countless other cases, the judiciary is literally bypassed even for measures seriously affecting individuals’ core human rights, such as certain travel restrictions or the right to practise as a lawyer”, the Commissioner said.

“Turkey has the right and duty to fight against terrorism and criminal organisations, including in response to the attempted coup d’état of 15 July 2016. There is no security without respect for human rights and at the same time people cannot enjoy human rights if they do not feel secure. Disregarding human rights in this fight against terrorism undermines the rule of law and trust in the justice system.”

The Commissioner stated that “laws with an overly broad definition of terrorism and membership of a criminal organisation and the judiciary’s tendency to stretch them even further is not a new problem in Turkey, as attested in numerous judgments of the European Court of Human Rights,” adding that “this problem has reached unprecedented levels in recent times.” She said that prosecutors, and increasingly also the courts, consider lawful and peaceful acts and statements protected under the European Convention on Human Rights as proof of criminal activity, with no attempt to balance supposed security concerns against human rights.

“What is used as evidence is sometimes so inconsistent and arbitrary, as can be seen in the recent indictment concerning the Gezi events, that it has become virtually impossible to foresee in good-faith the legal consequences of actions”, the Commissioner said. She added that this uncertainty discourages legitimate dissent and criticism.

The Commissioner considers that the new Judicial Reform Strategy presents an important step and a sign of goodwill by acknowledging some of her concerns regarding the Turkish judiciary. “However, I have shared my view with the authorities that this strategy does not address crucial problems, such as the constitutional framework guaranteeing judicial independence and self-governance, or many shortcomings concerning the principles of fair trial, equality of arms and legal certainty. In any event, even for the problems the strategy does acknowledge, its implementation depends on the authorities’ willingness to completely and very quickly overhaul key legislation, including the Criminal Code, Anti-Terrorism Law and Code of Criminal Procedure”. 

Another focus of the Commissioner’s visit was the situation of human rights defenders and civil society in Turkey. She said that legitimate activities of independent, rights-based civil society organisations, which are indispensable in a democratic society, are subjected to continuous pressure from the Turkish authorities.  According to the Commissioner, this pressure takes many forms: the tightening of an already repressive legal and regulatory framework, the outright closure of civil society organisations without any court decision or an effective remedy, toxic political discourse and smear campaigns in pro-government media, and numerous criminal proceedings against human rights defenders.

The Commissioner added that “these proceedings, combined with a wanton use of pre-trial detention, unjustly upend many persons’ lives in Turkey, including many human rights defenders. As a result, all of Turkish society is subjected to a profound chilling effect. It is high time to ease the pressure on human rights defenders in Turkey and enable them to work freely and safely”.

The Commissioner argued that, in this context of general deterioration, lawyers suffer doubly, both as human rights defenders and as an essential part of an increasingly challenging judicial system. “Not only has Turkey taken measures restricting procedural defence rights and hampering lawyers’ ability to defend their clients, but it has come to my attention that lawyers are also increasingly being targeted through judicial actions for bringing cases alleging human rights violations, or as guilty by association with their clients. This is unacceptable and must be rectified as an absolute priority by the Turkish authorities,” the Commissioner said.

During her visit from 1 to 5 July the Commissioner visited Istanbul and Ankara, meeting Turkish officials, including Mevlüt Çavuşoğlu, Minister of Foreign Affairs, and Abdülhamit Gül, Minister of Justice, as well as civil society representatives and lawyers. The Commissioner also expressed her appreciation for the fact that the Turkish authorities had facilitated a visit to Silivri Prison, where the Commissioner met Osman Kavala, Ahmet Altan and Selçuk Kozaağaçlı.

The Commissioner’s report on her visit to Turkey is forthcoming.

Strasbourg 08/07/2019
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