Turkey: A Test for European Values
Author: José Igreja Matos, President of European Association of Judges (EAJ) Date: Jan 14, 2017
This is moral blindness – self-chosen, self-imposed, or fatalistically accepted – in an epoch that more than anything needs quickness and acuteness of apprehension and feeling. In order that we regain our perceptiveness in dark times, it is necessary to give back dignity as well as the idea of the essential unfathomability of human beings (…) – Zygmunt Bauman and Leonidas Donskis, Moral Blindness: The Loss of Sensitivity in Liquid Modernity.
An European Assessment – a manifest disrespect for the independence of judiciary in Turkey
Indisputably, the current situation in Turkey is characterized by an affront towards basic standards of independence of Judiciary. In the November issue of Research Turkey, Christophe Regnard, the then recently elected President of International Association of Judges, wrote an article, symptomatically named “Turkey: The End of the Rule of Law”, indicative of how aloof Turkish Government is from its international commitments and European democratic standards (Regnard, C., “Turkey: The End of the Rule of Law”, Vol. V, Issue 11, pp.16 –http://researchturkey.org/?p=13021)
The main concern was already about the troubling and shocking indifference revealed by the European authorities; therefore the challenge for all European associations of Judges remains until this very day unchanged: “to ensure that the approach to the situation in Turkey is not trivialised and that the European authorities do not turn a blind eye to the unprecedented attacks on the judiciary in a European country. “However the recent statements of several European institutions seem to finally initiate a diverse path of awareness and disapproval.
Some concrete examples can be considered:
I) December 8th: the European Network of Councils of Judiciary (ENCJ) decided, in General Assembly, to suspend, with no Council voting against, the observer status of the Turkish Judicial Council (Hakimler ve Savcılar Yüksek Kurulu, in Turkish, HSYK). Thus the HSYK is now excluded from participation in ENCJ activities. The reasoning of the ENCJ was impressive: “it is a condition of membership, and for the status of observer, that institutions are independent of the executive and legislature and ensure the final responsibility for the support of the judiciary in the independent delivery of justice. (…) taking into account the failure of the HSYK to satisfy the ENCJ that its standards have been complied with, the statements of the HSYK, as well as information from other sources including the reports and statements of the European Parliament, the European Commission, the Human Rights Commissioner of the Council of Europe and Human Rights Watch and the Venice Commission, the ENCJ decided that the actions and decisions of the HSYK, and therefore the HSYK as an institution cannot be seen to be in compliance with European Standards for Councils for the Judiciary. Therefore, the HSYK does not currently comply with the ENCJ Statutes and is no longer an institution which is independent of the executive and legislature ensuring the final responsibility for the support of the judiciary in the independent delivery of justice.”
II) November 28th: the Platform for an Independent Judiciary in Turkey, which is formed by the four European judges associations, the Association of European Administrative Judges (AEAJ), the European Association of Judges (EAJ), the Judges for Judges, and the Magistrats Européens pour la Démocratie et les Libertés (MEDEL), issued a joint statement in the form of a letter to the President of ENCJ.
In the text, the Platform stated clearly that HSYK does not meets European standards, most of which are laid down in Opinion Nº 10 (2007) of the Consultative Council of European Judges “On the Councils for the Judiciary at the Service of Society” (hereinafter to be referred to as “Opinion”) and in the Recommendation (2010) 12 of the Committee of Ministers of the Council of Europe on Judges: Independence, efficiency and Responsibilities (hereinafter Rec.).
Summarizing the content of the letter, it is said in the letter that the mission of a council for the judiciary is to defend both the independence of the judiciary and the independence of the individual judge (Opinion para 8; Rec. para 26 and 29), but that HSYK did not defend the judiciary against measures of the executive and legislative powers, which infringed the independence of the judiciary e.g. by changes of the law regarding the High Council of Judges and Prosecutors and by amendments of the law on the Cassation Court and the Council of State, which deprived judges of their positions in these courts. HSYK also ignored the independence of numerous individual judges e.g. by removing the immunity of judges and by allowing criminal investigations against judges without previous investigation into whether there were any suspicion that claims, which were put forward, had any basis, and also by starting disciplinary proceedings on the basis of the content of decisions made by judges (which were only concerned with establishing facts and interpretation of the law).
HSYK adopted a decision with only 62 pages of reasoning as sufficient to dismiss thousands of judges. Security of tenure of office is a core element of the independence of a judge and the dismissal of judges should be used only in case of misuse of the exercise of office (e.g. UN Basic principles on the Independence of Judiciary, Opinion para 95, 92, 63 , Rec para 49 and 50). However, the letter continues, the procedure of HSYK completely contradicts these requirements. The procedure is especially totally inadequate when the criminal investigations used as the occasion to sack those judges are still in a pre-trial stage; the principle of the presumption of innocence, which is enshrined in Article 5 of the ECHR was consequently completely ignored, if not violated.
III) December 9th: An Opinion adopted by the Council of Europe’s constitutional law experts – the Venice Commission – concludes that the Turkish Government implemented its emergency powers through ad hominem legislation. Thus, “tens of thousands of public servants” were dismissed on the basis of lists appended to emergency decree laws. Those collective dismissals did not refer to verifiable evidence which related to each individual case. According to the Opinion, the speed with which those lists appeared implies that the collective dismissals were not accompanied even by a minimum of procedural safeguards; those dismissals apparently are not subject to judicial review by the ordinary courts, or, at least, the accessibility of judicial review remains a matter of controversy. And the Venice Commission concludes that such method of purging the State apparatus creates a strong appearance of arbitrariness.
Concerning judges the Opinion could not be more clearer: “judges represent a special category of public servants, whose independence is guaranteed at the constitutional and international levels (see the ICCPR, Article 14 § 1, and the ECHR, Article 6 § 1). Therefore, any dismissals within the judiciary or the regulatory bodies of the judiciary such as the HCJP, for example, should be subjected to particularly exacting scrutiny, even in times of a serious public emergency. Such dismissals not only affect human rights of the individual judges concerned, they may also weaken the judiciary as a whole. Finally, such dismissals may create a “chilling effect” within the judiciary, making other judges reluctant to reverse measures declared under the emergency decree laws out of fear of becoming subjects of such measures themselves.”
IV) November 16th: The Steering Committee of European Judicial Training Network (EJTN), at its meeting in Brussels, has decided to temporarily and provisionally suspend from the status of Observer which had been granted to the Academy of Justice of Turkey and to submit to EJTN’s next General Assembly, on 22 – 23 June 2017, a recommendation towards a formal resolution on the suspension of the status as Observer of the Academy of Justice of Turkey. One of the notes of the Steering Committee mentioned a particular apprehension: “the persisting reports on the arresting, suspension or removal from office of judges, and their deprivation of property, without any adequate procedure and in disrespect of the independence of the judiciary”.
A different perspective
All the institutional effort provided by EAJ/IAJ addresses only one viewpoint of the problem. But another perspective is linked with the due solidarity to the several thousand judges and prosecutors jailed, dispossessed of their assets, living in a condition that puts in peril even daily survival along with their families. It becomes unavoidable to draw attention to all these persons immersed in such a cruel circumstance experiencing a radical turnaround of their existence after years of having an economic and social status of what had been thought guaranteed by their technical expertise and judicial work. Belonging to an intellectual elite, selected after an appointment procedure based in merit criteria, thousands of judges and prosecutors in Turkey are confronted with a painful daily routine in prison or, if released, confronted with unemployment and again with the arduous mission of providing for the daily survival of their families.
All European associations of Judges, along with the judges worldwide, are perfectly alert to the present torment of Turkish judges and prosecutors and reject endorsing a moral blindness that ignores human suffering in such dark times.
A Commitment against Injustice
“In the little world in which children have their existence”, says Pip in Charles Dickens’s Great Expectations, “there is nothing so finely perceived and finely felt, as injustice.” (…) But the strong perception of manifest injustice applies to adult human beings as well. What moves us, reasonably enough is not the realization that the world falls short of being completely just – which few of us expect – but that there are clearly remediable injustices around us which we want to eliminate.” – Amartya Sen, “The idea of Justice” (preface).
As Amartya Sen lucidly wrote in a scenario that utterly applies to the Turkish judiciary nowadays, the reaction from Europe towards the ruthless attacks against judicial independence should not be focused, at least on a short-term basis, on a discussion about how justice finally can be offered to judges and prosecutors in Turkey. That will be a misleading manner to do nothing while speculating on improbable outcomes. The Turkish authorities are not concerned in restore justice to those judges and prosecutors and they will continue to act in the exact same routine irrespective of international clamour.
What should be “finely perceived and finely felt” by those who promote the Rule-of-Law is the current situation of injustice – vivid and irrefutable – imposing a robust and immediate response.
The numerous facts currently known indicate that the Turkish Government is using the opportunity to purge the judiciary, submitting to detention alleged members of Gülenist Terror Organisation (Fethullahçı Terör Örgütü, FETÖ) in clear violation of Articles 3.º, 5.º and 6.º of European Convention on Human Rights. The detention of judges and prosecutors is a disconcerting indication that Turkey is stepping away from democracy; because those who are still in office who have not been suspended or arrested will surely feel pressured to comply with the executive power. The actions taken by the Government are also very troubling considering that Turkey has been convicted several times in the European Court of Human Rights for violations of the above mentioned Articles, without visible improvements regarding fundamental rights that now seems to be even more in peril. Hence the commitment against injustice calls from European judges an attitude of support and assistance for our Turkish colleagues.
The level of injustice – thousands or detentions, cruel treatment if not continuous torture, the seizing of assets in a way that puts at risk the plain survival of their families – is so overwhelming that this commitment must be shared by the main European stakeholders involved in defending a culture of respect for human rights.
Each week we receive in our secretariat in Rome many letters written mostly by the wives, sons and daughters of arrested judges and prosecutors; they appeal, in a desperate tone, for help. To the same effect, the “Preliminary observations and recommendations of the United Nations Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment” from Mr. Nils Melzer, on the official visit to Turkey (27 November to 2 December 2016), published a personal appeal to the Turkish Government “to publicly reinforce its “zero tolerance” policy on torture and, in particular, to unequivocally make clear to State officials at all levels that they are expected and, indeed, obliged to report and investigate all allegations of torture and to bring perpetrators to justice.”
Although always resilient and abiding, even hope needs to be nourished with concrete and pragmatic behaviour. Therefore, although facing numerous difficulties to put an effective strategy on the ground, EAJ/IAJ is now involved in providing financial assistance to the families of Turkish judges and prosecutors. The new Fund is composed of donations from national associations of judges or from any other institutions or individual donors.
Our certainty relies on the prospect that the present situation is temporary and that inevitably normality will return permitting all those colleagues, helped by their peers, to be reinstated in their judicial duties. But meanwhile it is our duty to do something about it; obeying an ancient lesson of practical conduct, that is enshrined on our European culture, which was advanced many centuries ago by Aristotle’s words: “For the things we have to learn before we can do them, we learn by doing them, e.g. men become builders by building and lyre players by playing the lyre; so too we become just by doing just acts” – Nicomachean Ethics by Aristotle written in 350 B.C.E.
The present attitude taken by the Association of Judges claims also to challenge others international organizations in Europe. The core values that constitute our civilized identity should entail the same collective response. Europe must surpass this difficult test; let us all believe that it will succeed.
- reprinted with the permission of the Author: Original source: Matos, J. I. (January, 2017), “Turkey: A Test for European Values”, Vol. VI, Issue 1, pp.6 – 14, Centre for Policy and Research on Turkey (ResearchTurkey), London, Research Turkey. (http://researchturkey.org/?p=13149)
