While calls for “justice” are being heard and new controversial verdicts are being reached every day, the planned projects of “judicial integration period” and “limits on due process” do not seem to alleviate the discussions on the judicial independence. The co-chair of the Human Rights Association (İHD) Jurist Öztürk Türkdoğan thinks that the structural problems of the judicial system should come before such arrangements.
Çınar Livane Özer
As the calls for “justice” within the judicial system is on the rise, the upcoming judicial term will be witnessing many new arrangements including increasing the number of courts of appeal and appointments of judges and prosecutors. However, jurist Öztürk Türkdoğan is of the opinion that the structural problems of the judicial system should come before such arrangements.
Two judicial reform projects President Erdoğan has announced within the Hundred Days Plan of Action will be initiated with the upcoming judicial term. One has the title “judicial integration period.” The target is to integrate the communications between the courts, public prosecutors, enforcement offices and the police departments within their individual systems. The other project is named “limits on due process” which aims at concluding trial processes on predetermined and announced dates.
NUMBER OF JUDGES AND PROSECUTORS WILL INCREASE BUT…
For the new term the number of judges and prosecutors will be increased. Currently seventeen thousand judges and prosecutors, including those recently appointed, are serving. Minister of Justice, Abdülhamit Gül announced that, in accordance with the project of limited due process, each year five thousand judge and prosecutors would be appointed. The minister stated that, “Our need is not only quantitative but also qualitative. Right now we have many colleagues on the bench. Fifty per cent of the cadres have less than five years of experience. There are too many younger judge and prosecutors. Rather newly graduated with fresh judicial knowledge, on September graduation term, each year on November we will add to our staff.”
The question of young and inexperienced judge and prosecutors was on agenda especially during the period when many were discharged on allegations of being member of the Fetullahist Terror Organization (FETÖ). Younger judge and prosecutors had replaced them and the benches had been “rejuvenated.” However, the jurists are worried about too many young judge and prosecutors. They argue that without proper occupational experience there might be qualitative problems regarding court decisions.
DEBATES ON CASTRATION
Following the tragic deaths of eight years old Eylül and four years old Leyla, the problem of child sex offenders was set at the top of the national agenda and the debate was conducted on the issue of castration.
This was not the first time: Castration was on the headlines also in 2016. Regulation on the Treatment and Other Obligations to be Implemented to the Convicts of Criminal Offences Against Sexual Immunity had been announced on the official gazette and come into force by July 24, 2016. With the bylaw, during the execution of the punishment or on the conditional release of the sexual offense convicts, new sanctions were put into force, including medical treatment for reducing sex drive. The Psychiatric Association of Turkey (TPD) and a citizen had appealed to the State Council for the stay and annulment of some of the provisions of the bylaw. 10th Board of the State Council had adopted a motion for stay of execution of the article 7/1 of the regulation. The legislative intention stated that the constitution ensured the physical integrity of the citizens with exceptions of only medical obligations and obligatory cases provided by law and that this situation could only be regulated by law.
Although nowadays the debates on castration are out of sight, the government statements signal the renewal of the discussion and upcoming new regulations on punishment.
NUMBER OF APPEAL COURTS IS INCREASING
The number of the courts known to the public as “appeal courts” will be increased by the new term. The justification for the appeal courts that had passed into judicial law in 2004 and into administrative law in 2014 was announced as “multiplying the procedures of legal remedies and enhancing legal certainty by revaluating evidence” and they were designed to act as courts of jurisprudence. The number of appeal courts, the practices of which had failed to pass beyond being district courts, will firstly be increased from 9 to 10 and later to 15.
THE BOTTLENECK BEFORE THE ECHR: COMMISSION OF STATE OF EMERGENCY (OHAL)
The rejections of appeal by the OHAL Commission will be among the files the judiciary has to deal with this year. The number of appeals to the Commission of Examination of the OHAL Processes, which has been founded on January 23, 2017 for hearing the cases regarding those dismissed from profession, students denied scholarship, demoted retired army and security staff and institutions and establishments closed down, reached to 118,660. The commission, while resolving only 30 thousand, dismissed 28 thousand and 100 cases. The claimants could apply for revocation to the Ankara administrative courts No. 19 and 20 within 60 days of notification of the verdict. Given the commission’s decisions, so far it is very likely that a good number of people will apply for revocation during the upcoming term.
The commission’s decision process at snail’s pace also hinders the process of applications to the ECHR (European Court of Human Rights). The citizens have to wait for the commission’s decision before going to the ECHR for it is obligatory to exhaust all the possible processes of domestic judiciary system.
‘HARDEST DAYS FOR THE JUDICAL SYSTEM’
So, what do the new courts, new appointments or laws have coming for the debates on the “judicial independence”? The co-chair of the Human Rights Association (İHD) Criminal Law Jurist and attorney Öztürk Türkdoğan argues that the question is the “structural problems” of the judicial system. Türkdoğan, saying, “The issue is the constitutional system becoming more and more authoritarian. Now, the rights and freedoms are being restrained by the law. The judiciary has lost its constitutional power,” has the opinion that Turkey has failed in its judiciary system.
“DECISIONS IN LINE WITH SECURITY POLICIES’
Türkdoğan, pointing out that the weight of the Presidency and the JDP’s majority at the parliament on the appointment and promotion of the judiciary has a manipulating effect on the judges and prosecutors argues that, “Judges and prosecutors feel obligated to act accordingly with the direction determined by the government. The give decisions accordingly with the national security policies. The court decision on the other hand have a direct effect on the society.”
Türkdoğan, criticizing the Constitutional Court as well, expresses his concerns: “The constitutional Court failed to fulfill its obligations. It rejected to hear the appeals regarding State of Emergency (OHAL) decrees. Now the lower courts, this decision before them, will decide accordingly.”
Türkdoğan also mentions his concerns about the young judge and prosecutors: “There is a problem of merit here. If you do not have sufficient experience in the occupation, you cannot succeed in doing what you have to do. They should study ECHM ruling cases, learn human rights law, field of rights and freedoms and reflect in their decisions. This is a long process. It requires at least 10, 15 years.”
Translation: Benan Eres