4 October 2019
İHD Report and Recommendations
the Judicial Reform Strategy Document by the Ministry of Justice
İHD has repeatedly stated that in Turkey there was no judicial structure functioning in line with the principle of rule of law, there were grave barriers before the right to a fair trial, there was the threat of Feindstrafrecht or enemy criminal law implementation by way of courts with special powers, notably the rights to freedom of expression, peaceful assembly and association have completely been restricted by a rather broad definition of terrorism through the Anti-Terror Code (ATC), no distinctions were made between those who resorted to violence and those who did not, the political power has been subjecting social dissidence and dissident political parties to judicial harassment by instrumentalizing the ATC through public prosecutors’ offices and courts with special powers. İHD has also drafted special reports and issued various studies on these issues.
The fact that the political power acknowledged there were problems in the judicial field in Turkey by its Judicial Reform Strategy Document made public by the political power on 30 May 2019 is indeed a remarkable development. İHD, hereby, identifies the shortcomings of this document, which does not mention any changes that are necessary to realize any kind of “reform,” and offers its recommendations as to the ways in which such “reform” can be brought about.
When one talks about the judiciary in Turkey, cases of injustice within the penal legislation and fair trial problems spring to mind. The Turkish Penal Code No. 5237 (TPC) (former TPC No. 765), ATC No. 3713, Code of Criminal Procedure No. 5271 (CCP) and the Law on the Enforcement of Sentences and Security Measures No. 5275 should be considered all together within the penal legislation. Moreover, it also proves to be vital to discuss the steps to be taken to remedy the cases of injustice found in these laws.
Although not officially announced, there are between 285 thousand and 300 thousand inmates and convicts incarcerated in prisons in Turkey. This figure is way above the current capacities of penitentiary institutions which is about 220 thousand. Furthermore, it is known that there are also 250 to 300 thousand persons who were released on probation to serve their remaining last two years without being remanded in prison. The number of persons under judicial control who have not been remanded during the investigation and prosecution stages is estimated to be around 450 thousand.
This crisis of justice witnessed in Turkey can only be remedied through fundamental amendments and modifications to the penal legislation. It is also essential that these amendments be made in accordance with the international conventions Turkey is a party to, judgments and case law of the European Court of Human Rights (ECtHR), and universal human rights values. As a human rights body, İHD considers it a task to underline these points that have been ascertained to be problematic in the penal legislation of Turkey and to propose solutions to this end.
In order for Turkey to bring about a genuine judicial reform, primarily the current state of affairs should be explained in its constitutional and legal dimensions with regards to human rights. As is known, Turkey is a country conducting accession talks with the EU. As can also be seen in the EU Progress Reports, these negotiations are at a de facto halt. Turkey made commitments under “democracy, rule of law, human rights and minority rights,” also known as the Copenhagen political criteria, while undertaking these negotiations. Within this process, however, a conception of anti-democratic government, which some dubbed as the “Ankara criteria,” has replaced those of Copenhagen. The perspective on human rights, too, has been thoroughly shaped within the framework of security-based policies and enforced in the “first security then human rights” fashion. Therefore, Turkey needs to declare a political will that will re-demonstrate its commitment to the Copenhagen political criteria.
Turkey is the only country against which the Council of Europe re-initiated the political monitoring procedure with the Parliamentary Assembly of the Council of Europe (PACE) Resolution 2156 (2017) of 25 April 2017. Unless the recommendations in the council’s political monitoring resolution are complied with, the judicial reform strategy document cannot be materialized. Thus Turkey firstly needs to carry into effect constitutional and legal changes, and eliminate all cases of violation in practice in order to get out of the political monitoring procedure.
Although the coup d’état attempt of 15 July 2016 was quenched merely a day after on 16 July 2016 and acts of violence were prevented, state of emergency (SoE) was declared on 20 July 2016. Turkey has been governed for two years under the SoE regime. A total of 32 SoE decree laws were issued during this period all of which were passed into laws. These decree laws have introduced permanent amendments into hundreds of fundamental laws and thousands of articles. These decree laws that restrict rights and freedoms giving way to impunity should absolutely be amended and revoked in their entirety.
Law No. 7145 on the Amendment of Some Laws and Decree Laws that went into effect on 31 July 2018 after the lifting of the SoE introduced amendments that would enable the continuation of some SoE practices for another three years. The SoE has virtually been rendered permanent and extended for another three years with the extension of custody periods for up to 12 days, granting of power to governors to declare curfews for 15 days, enabling public institutions to dismiss personnel from their posts by way of a special commission for three more years and restrictions on peaceful assemblies and protests. All the amendments introduced by Law No. 7145 such as these should absolutely be repealed.
Turkey introduced substantial amendments to its Constitution on 16 April 2017 under the reign of SoE and its political regime was replaced by one based on a one-man government known by the public as the “Turkish-Type Presidency.” All these constitutional amendments fully entered into force after the presidential and general elections of 24 June 2018.
Council of Europe Venice Commission’s “Opinion on the Amendments to the Constitution Adopted by the Grand National Assembly on 21 January 2017 and to be Submitted to a National Referendum on 16 April 2017” of 13 March 2017 (No. 875/2017) contains rather significant points and recommendations. The Venice Commission stated, in paragraph 130 of this report, that the proposed constitutional amendments would introduce in Turkey a presidential regime which lacked the necessary checks and balances required to safeguard against becoming an authoritarian one. İHD would, therefore, like to state that it is necessary to meet the Venice Commission’s main critical points on constitutional amendments and to draft a new constitution necessarily dependent on the principle of separation of powers, committed to the principle of rule of law, based on human rights guaranteeing all kinds of minority rights.
Further, two basic issues in the current Constitution that would prevent the enactment of the judicial reform should immediately be dealt with until the commencement of the process for drafting a new constitution. As the Venice Commission stated in its report, the president’s powers on the judiciary should be reviewed and modifications that would contribute to the formation of an independent judiciary should be materialized (such as appointment of members to the Board of Judges and Prosecutors (BJP), and to the Constitutional Court), and the president’s power to enforce legislative regulations in economic, social and cultural rights through presidential decrees should be revoked.
When one assesses the political climate of Turkey, the impasse over the Kurdish issue turns out to be even more significant. Turkey needs to materialize a genuine conflict resolution process within the framework of the principles adopted by the UN General Assembly in 2006 and updated thereupon. Turkey should put an end to the ongoing conflict process and develop new policies that will resolve problems via peaceful dialogue for its very own democratization and to minimize its human rights problems.
İHD believes that the political power should first of all prioritize clearing the path without delay in order to materialize its proposed judicial reform. İHD, thus, considers it a necessity to remove the restrictions before the right to personal liberty and security through substantial amendments to the penal legislation. To achieve this, particularly laws on the rights to freedom of expression and freedom of association should be amended and restrictions on freedoms should be removed; the process should be prepared by improvements in such fundamental laws as the Turkish Penal Code (TPC), Anti-Terror Code (ATC), Code of Criminal Procedure (CCP), and the Code on the Enforcement of Sentences (CES). İHD is of the opinion that substantial changes should be introduced, especially to the CES, taking into consideration the current over-population, isolation-related problems and other rights violations in prisons.
The work undertaken by the Ministry of Justice for the judicial reform strategy, on the other hand, was conducted without consulting social dissidence and opposition parties. Whereas it is of great significance to take the opinions of social segments who have to face injustice the most. Besides, overcoming problems brought about by the dismissal of about one third of members of the judiciary due to the SoE which, in turn, gave way to the inauguration of persons accounting for about half of the current members of the judiciary along with securing a practice committed to the case laws of the European Court of Human Rights (ECtHR) and the Constitutional Court should be provided for. It should be remembered even the best laws in the hands of poor practitioners do not serve justice. It should also be remembered that many current problems, notably those in freedom of expression cases, arise from practice.
İHD is of the opinion that effective dialogue should be engaged during the preparatory process for the omnibus bills on judicial reform by the Ministry of Justice. İHD would like to state that the problems in practice would be minimized if Turkey introduces necessary amendments to domestic legislation which will implement the provisions of the UN Declaration on Human Rights Defenders, adopted by the General Assembly Resolution A/RES/53/144 on 9 December 1998, and issues a presidential circular letter on the issue.
Further İHD would like to point out that holding regular meetings between the Ministry of Justice and human rights organizations and professional bodies would enhance the human rights approach and contribute to the effectiveness of the dialogue.
İHD has presented the primary problematic areas in the proposed Judicial Reform Strategy Document and proposed its recommendations to solve problems. İHD’s report should necessarily be taken into account. İHD will also share with the public its views on judicial package bills. At this stage, however, legislative amendments should be introduced to meet the following concrete demands:
- The definition of terrorism in the TPC should be revised to comply with international conventions Turkey is a party to and they should be redrafted so as to incorporate the points put forth in the UN Security Council Resolution No. 1566 (2004). Accordingly, the current ATC should be repealed in its entirety.
- Articles 220 and 314 of the TPC should be amended in compliance with the opinion of the Venice Commission and ECtHR judgments. The distinction between those who resort to violence and who do not should be set definitively; those who do not use violence should not be punished. Articles 220 § 6-7 and 314 § 3 of the TPC should be repealed as they are not foreseeable.
- Provisions preventing the rights to freedom of expression and association, to political participation, to peaceful assembly and demonstration should be removed from the legislation. The related articles referred to in this report should be repealed.
- Heavy penal courts and prosecutor’s offices with special powers should be closed down. New regulations should be introduced in line with the report of the Venice Commission on Criminal Peace Judgeships.
- The provision set forth in Article 100 § 3 of the CCP that enables easy detention of individuals when charged with “catalogued offenses” should be repealed and all CCP regulations preventing the right to a fair trial, notably those before the collection of evidence, should be repealed. All regulations put into force through the state of emergency decree laws should be revoked.
- Discrimination in the enforcement law should be eliminated, terms of enforcement for all prisoners should be rendered equal.
- Privileges before the use of supervised release should be removed.
- Legal and administrative barriers preventing the release of sick prisoners should be removed.
- Enforcement of aggravated life sentences until the prisoner is dead should be put to an end, a conditional release term should definitely be set so as to take the prisoner’s age into account in line with ECtHR judgments.
- Such subjective concepts as junction (iltisak) and contact (irtibat) that were introduced to the legislation first by state of emergency decree laws and subsequently by Law No. 7145 should be removed, judicial practices concerning loyalty to the government should be replaced by loyalty to the social state governed by rule of law in line with ECtHR case law.
- A single-article law should immediately be adopted to defer cases of crime and punishment stated to have been committed through the media and social media until permanent regulations are set.
Human Rights Association
Legal Affairs Committee
For the full report in English (17,841 words) please click: IHD Report on the Judicial Reform Strategy Document_4 Oct 2019_final
 See EU’s Turkey 2018 Progress Report: https://www.avrupa.info.tr/sites/default/files/2018-06/20180417-turkey-report_0.pdf
 See PACE’s “The functioning of democratic institutions in Turkey”: http://website-pace.net/documents/19887/3258251/20170308-TurkeyInstitutions-EN.pdf/bbd65de5-86d4-466f-9bc1-185d5218bce7
 See Human Rights Joint Platform’s State of Emergency in Turkey: Updated Situation Report: https://www.ihop.org.tr/en/wp-content/uploads/2018/04/SoE_17042018.pdf
 See İHD’s special report on “Law No. 7145 Regulation Permanent State of Emergency”: (such as appointment of membersard of Judges and Prosecutors, and to the Constitutional Court)ul assemblies and rallies.ng publ https://ihd.org.tr/en/regarding-law-no-7145-regulating-permanent-state-of-emergency/
 See “İHD Report and Recommendations for the Elimination of Injustice in Penal Legislation”: http://ihd.org.tr/en/index.php/2018/09/26/ihd-report-and-recommendations-for-the-elimination-of-injustice-in-penal-legislation/