(In)justice for arrested judges of Turkey

European Court of Human Rights (ECHR) in the March 3 judgment in the case of Baş v. Turkey (application no. 66448/17), ruled that the arrest of Judge Hakan Baş following the abortive 15 July coup attempt  was in violation of European Convention on Human Rights. In this landmark decision, the European court said:

  • arrest of this judge was illegal in the first place, as there was no reasonable suspicion that he had committed an offence,
  • the necessary procedure for investigation and arrest of judges was not followed,
  • state of emergency and derogation from human rights conventions cannot be seen as a “carte blanche” for arbitrary arrests,
  • right to speedy review of the lawfulness of detention was breached  by   14 months during which the applicant had not appeared in person before a judge.

Albeit some years late, having noted the unlawful and arbitrary approach of the current Turkish judiciary, this decision at least keeps hopes somewhat alive by acknowledging the truth about thousands of purged judges.  Besides, preliminary arguments on legitimacy of Peace Penal Judgeships (Sulh Ceza Mahkemeleri) seems to be the contentious aspect of the ruling. It contradicts  the findings of the Venice Commission as well as those of  the report published by Dunja Mijatovic, the Human Rights High Commissioner of the Council of Europe. Legitimisation of so-called evidence which were placed in the files weeks after the illegal detentions is another flaw of the decision. However, the Strasbourg court left the door open to revise these two points in upcoming cases again.

Turkish government has also been sentenced to pay 10.000 Euros as compensation for violation of the purged judge’s rights. Considering approximately 2500 cases of the same nature are in the pipeline, it seems the government will have to pay around 250.000 Euros as compensation to the arrested judges and prosecutors only for their initial arrest. Tens of thousands of other cases will most probably be concluded in similar manner by the Strasbourg Court given the dearth of domestic remedies.  By virtue of this recent decision, it would be useful to remember what happened to these judges and prosecutors. As of 15 July 2016, the day of the abortive coup, there were around 14.500 judges/prosecutors in Turkey. 4.560 of them were dismissed in a few weeks following 15 July. There are currently around 20.000 judges and prosecutors. This means, having ‘cleared the way’ by sacking and imprisoning thousands while sowing fear among the remaining, the Erdogan government hired 10.000 “accredited” new judges in less than three and a half years. 

In its 96-year history, Turkey experienced hard times. Military coups of 1960 and 1980 as well as military intervention of 1971 were the hardest times for the constitutional democracy and separation of powers. But even during those times, judges were not subject to purges at this scale. For example, after the bloody and treacherous coup d’etat 1980, number of judges and prosecutors subject to administrative or judicial proceedings was only 47 and a total number of 120 academics were sacked, 31 journalists were arrested, far less comparable with current numbers. How did Erdogan acquire such power over the judiciary? It might well be the reason why he described this treacherous attempt as “a gift of God” on that very day. At least, it is clear that he used this opportunity much more effectively than anyone could expect. How did he do this? Attacking the judges and justice at first place helped him a lot. This reminds of Dick the Butcher, who says “The first thing we do after the revolution, let’s kill all the lawyers” in Shakespeare’s Henry IV. In the story, he believes that lawyers stand in the way of their planned revolution with Jack the Spade. For that reason, they must be eliminated. So, the priorities of authoritarian minds have remained unchanged since Shakespeare wrote that play more than four centuries ago.

Breach of fundamental liberties of the 96-year old Turkish Republic has reached record-levels.. Now, we are talking about a country which has put more than 300 journalists, party co-chairs and tens of elected mayors of HDP (the pro-Kurdish People’s Democratic Party), the head of the dissolved association of judges (YARSAV) and president of Progressive Lawyers Association (ÇHD) behind bars, as well as more than 263,000 others under the pretext of terrorism-related charges since July 2016. Not surprisingly, what we see today is a country that is ranking 109th among 126 countries in rule of law index of 2019, whereas, it was 59th even in 2014 in the aftermath of Gezi protests and anti-corruption probes.

At this point, it is useful to look at the protest letter written by the Joint Platform of European judges comprising several European associations of judges, in late October 2019. This Platform appealed to all European institutions to cease any cooperation with the Turkish judiciary until the rule of law is restored in the country and to use all means to convince Turkey to end its witch-hunt against judges and prosecutors. All European Institutions were urged in the letter to persuade Turkey to reinstate unduly/unfairly dismissed judges and prosecutors and return their confiscated assets. Turkey was also called on returning to the principles of a fair trial as established in the European Convention of Human Rights.

EU Commissioner Johannes Hahn, in response to this letter, replied to the presidents of the judges’ associations last November, confirming that he shared the same concerns regarding the rule of law in Turkey. Dunja Mijatovic’s report scrutinises the same concerns.

It is not a secret that the judiciary has always been used as an instrument or as a tool to silence the dissidents at different levels. However, the situation has never been so bad and miserable during the whole history of Turkish Republic.