Riza Turmen shares his pessimism about the rule of law in Turkey
By Esra CIFTCI
July 10 has been World Law Day in Turkey since 1967, by the decision of the Council of Ministers. The decision was taken at the same time as the third conference on “World Peace through Law” in Geneva. “Law” has become one of Turkey’s most “controversial” terms.
On July 10, World Law Day, we spoke to former ECHR (European Court of Human Rights) judge and lawyer Riza Turmen. Turmen highlighted that the presidential system of government has shifted Turkey away from the separation of powers towards “unity of powers”. The former judge of the ECHR underlined that the judgments of the ECHR for the former co-president of the HDP (The Democratic Party of the People) Selahattin Demirtas and the entrepreneur Osman Kavala violate the Constitution’s 90th Article.
‘CHAOS WITHOUT LAW’
What is the rule of law?
The law regulates the relationships between people and the state. Without law, there would be chaos. In its simplest form, the rule of law means that everyone’s behavior must comply with the law, and above all, the executive power must comply with the law.
There must also be judicial control over the executive branch. The law must protect the rights and freedoms of individuals. There must also be a separation of powers. The court decisions must be executed. There must also be independence and impartiality of the judiciary.
“THERE IS UNITY OF POWERS IN THE ABSURD SYSTEM OF TURKEY”
Is the rule of law enforced in Turkey?
There is no separation of powers in Turkey. The country’s absurd system, the presidential system of government, is based on the principle of the unity of forces. All the power is concentrated on one hand. There is no control over that, no checks and balances.
Is there judicial independence?
Turkey is not in a rosy situation in terms of judicial independence. In the index released by the World Justice Project in 2020, Turkey ranks 107 out of 128 states. In the annual reports of Freedom House (Freedom House), Turkey used to be in the category of semi-free countries. Now the country is in the category of non-free countries. Turkey is the country with the highest number of violations.
“A DECISION IN THE KAVALA CASE COULD LEAD TO EXPULSION”
Could you please explain this in more detail?
Infringement proceedings have been opened against Turkey for failure to comply with the judgment in the Osman Kavala case. Turkey is the only country where an infringement procedure is still ongoing. This could lead to expulsion from the Council of Europe.
It is as if there is a dual system in Turkey. In a divorce case or a lawsuit, you go to court; the judge decides by applying the rules and norms of the law. But in Turkey’s case, if a political case interferes with the government, then the law doesn’t apply there.
Of course, if the law is not enforced, there will be a vacuum. The will of one person fills this void. In the absence of an independent judiciary, the judiciary silences the opposition. If we add all this up, Turkey has no rule of law.
Has the rule of law in Turkey always been like this?
There has always been a legal problem in Turkey. The history of the Republic of Turkey is full of extraordinary judicial proceedings to intimidate the opposition. The courts of the independence war period, the court of Yassiada, the courts of state security (DGM) after the coup of 1980, the specially authorized courts, and today this criminal court are examples of this development. They are still courts with a special status, still used to intimidate opponents.
These courts have always existed, but never has the judiciary been used so recklessly. Let me give you an example; the Can Atalay case is a good example. According to Article 83 of the Constitution, a deputy suspected of committing a crime before or after the election cannot be arrested, interrogated, or tried without the parliament’s decision. The only exception is the Section 14. However, the Section 14 does not apply in this case. This is the reason that Can Atalay’s request for release was submitted to the prosecutor. But the prosecution hid the petition in its drawer.
‘NON-IMPLEMENTATION OF THE ECHR JUDGMENTS VIOLATES THE CONSTITUTION
Will the judgments of the European Court of Human Rights be executed?
No, they will not. For Osman Kavala and Selahattin Demirtas, there are decisions of the European Court of Human Rights for their immediate release. These decisions are also binding on the judiciary. You must obey. But our courts ignore them. According to Article 90 of the Constitution, if a conflict arises between the jurisprudence of the European Court of Human Rights, the Court of Human Rights judgments apply. In the event of such a contradiction, the court will apply the Article 90 and the European Court of Human Rights judgments. It is a mandatory provision of the Constitution. If it doesn’t, it breaks the Constitution.
We can also focus on the latest prosecution notice on the Gezi trial. It is as if there were no ECHR ruling. The ECHR has, however, investigated the facts cited in this report. It concluded that these facts did not raise reasonable doubts that the crime had been committed, that the actions in question were like exercising rights and freedoms, and that Kavala and Demirtas had been arrested for political reasons. It called for their immediate release.
The ECHR underlined something else in its Kavala ruling: “From now on, all decisions to be made about the Gezi events which contradict my judgment are invalid.”
If the rule of law principle were applied in Turkey, the country would implement the judgments of the ECHR. But in contrast, Kavala, Demirtaş, and other Gezi protesters are in jail.
‘NOWHERE ELSE IN THE WORLD INSULTING THE PRESIDENT IS A CRIME’
In Turkey, criticism is equated with terrorism. What will you say?
You cannot criticize the president. There is no such practice anywhere in the world. There is already a crime of insult; why is insulting the president a separate offense? It is not clear why there is such a privilege. Article 301 of the Turkish Penal Code also includes insulting the Turkish nation. Who is the addressee of this? Will the whole Turkish nation be the addressee of this?
‘THE MOST URGENT NEED IS TO ENSURE JUDICIAL INDEPENDENCE
What is the most urgent thing to be done for the law in Turkey?
Using the law for political purposes is more dreadful than the absence of the law in Turkey. We can say a few things with examples from around the world, but the most urgent thing we need to do in Turkey is to guarantee the judiciary’s independence. The most critical thing is to ensure that the judiciary makes independent and impartial decisions and that judges make bold decisions.
The rule of law is closely linked to democracy. In democratic countries, there can be a rule of law that protects fundamental rights and freedoms. As long as Turkey is not governed democratically, it is hopeless to expect the implementation of the rule of law principle. Democracy includes the ballot box plus protecting human rights, the rule of law, separation of powers, and the judiciary. The law protects these values and ensures the functioning of democracy.
Finally, what would you like to say on World Law Day?
Law is a universal concept. We must respect and protect universal legal values. The organizations to which Turkey is a member, the Council of Europe and the European Court of Human Rights, are founded on these values. Turkey must fulfill its obligations under international agreements and uphold these universal values.