In Turkey’s courts, a silent power struggle and a host of endemic problems are perverting the course of justice, writes Piotr Zalewski
Is a silent power struggle perverting justice in Turkey's court system?
Francis Ricciardone, the US ambassador to Turkey, isn't one to mince words. Two years ago, shortly after he took up his post, Ricciardone stirred up a hornet's nest when he publicly expressed concern about the state of press freedom in his host country. "On the one hand, there exists a stated policy of support for a free press," he said. "On the other hand, journalists are put under detention. We are trying to make sense of this." Recep Tayyip Erdogan, the Turkish prime minister, wasted no time in responding. Ricciardone was a "rookie ambassador", he said, who should have kept his mouth shut. "He does not know Turkey, he does not have any idea which laws there are, and then he walks into a trap and makes a statement."
Last month, Ricciardone shot from the hip yet again, drawing attention to the state of the Turkish judiciary. "You have members of parliament who have been behind bars for a long time, sometimes on unclear charges," he said. "You have your military leaders, who were entrusted with the protection of this country, behind bars as if they were terrorists. You have professors. You have the former head of the High Education Board, who is behind bars on unclear charges evidently relating to him upholding the law when he was a government official 16 years ago. You have non-violent student protesters protesting tuition hikes behind bars. When a legal system produces such results and confuses people like that for terrorists, it makes it hard for American and European courts to match up. We are working to reconcile our legal processes in both countries."
Again, the Turkish government countered. Hüseyin Çelik, a senior figure in the ruling Justice and Development Party (AKP), cautioned the ambassador against meddling in Turkey's domestic affairs. "We are requesting Ricciardone to remain within his boundaries and limits," he said. "We're not pleased with his remarks. We condemn and denounce them."
Ricciardone may have appeared to test the boundaries of diplomatic protocol, but his remarks spoke to a reality that has been addressed by Turkish journalists, human rights NGOs, and western governments with regularity over the past few years.
The consensus among these groups is that the state of the Turkish judiciary gives plenty of cause for alarm. In its most recent report on Turkey's preparedness for European Union accession - membership negotiations opened to great fanfare in 2005 but have proceeded at a snail's pace since - the European Commission, the EU's executive arm, cited a litany of problems plaguing the Turkish justice system. These included the lack of efficiency and the length of court proceedings, the dismal quality of indictments and of the indictment process, as well as the duration of, and lack of alternatives to, pretrial detention. In a statement released earlier this year, Human Rights Watch, an NGO, warned that Turkey's terror laws, as well as the pattern of prosecutions and convictions under these laws, often translated into restrictions on freedom of expression. "Politicians' intolerance of dissenting voices - extending as far as criticising television soap operas - and their willingness to sue for defamation perpetuates a chilling climate for free speech," the group also stated.
Nothing has made all of these problems as clear as a wave of high-profile trials, arrests and legal cases that have riveted Turkey over the past few years. An investigation into the so-called Union of Communities in Kurdistan (KCK), which began in 2009, has resulted in the arrests of as many as 8,000 Kurds, including activists, academics, politicians and journalists, often on very weak charges. (The KCK is suspected of being the urban arm of the Kurdistan Workers Party, or PKK, a militant group whose war against the Turkish state has claimed more than 40,000 lives since 1984.) A prominent pianist was placed on trial in 2012 for inciting hatred and insulting "religious values" after a series of tweets ridiculing Muslim clerics. Pinar Selek, a sociologist, was sentenced to life imprisonment at the beginning of 2013 for her alleged role in a 1998 explosion that killed seven people in Istanbul's Spice Bazaar. The case not only spanned 15 years, but also saw Selek acquitted on three separate occasions. Cengiz Çandar, a prominent commentator, called it "a mockery of Turkish justice".
Turkey, meanwhile, has upheld its record as the world's most prolific jailer of journalists, ahead of Iran and China. The government insists that most of those detained are held not because of their journalistic work but for serious crimes, including membership in a terrorist group. Members of the media have also been subject to a slew of defamation suits, including several filed by Erdogan himself. In the Reporters Without Borders' 2013 press freedom index, Turkey placed 154th out of 179 countries, down six spots from 2012.
Of all the cases that have made headlines in Turkey, however, none have been more politically charged than those involving alleged plans by rogue elements within the military, the bureaucracy and the intelligence services to topple Erdogan's government. In a trial that concluded last September, nicknamed Sledgehammer, 326 officers received sentences of up to 20 years after being convicted, last September, of conspiring to foment a coup. In a parallel trial, named Ergenekon, 275 defendants are expected to hear a verdict within weeks. The wave of military arrests has swelled so much that - according to a recent report in The Economist - one out of every five Turkish generals, and more than half of all admirals, are currently behind bars.
Whatever the merits of these trials - the Sledgehammer and Ergenekon cases have been welcomed as the funeral toll for a system of military tutelage that has slowed down Turkish democracy for five decades - each has been plagued by inconsistencies, sloppy evidence, as well as concerns that judges and prosecutors have been placed in the service of political interests. As a result, popular trust in the judiciary has plummeted. With the onset of democratic rule, many Turks hoped that the struggle for their country's soul, once fought in the streets, would be waged at the ballot box and in parliament. Today, they fear that it is being waged in the courts.
Since the 1950s, the Turkish system has been based on a peculiar set of checks and balances. Government and parliament, the symbols of political power, stood on one side. The army and the judiciary, the high priests of an ideology that promoted secularism, nationalism and the primacy of state interests over individual rights, stood on the other. Until the AKP's arrival in power, theirs was a skewed relationship: it was the army and the judiciary that acted as a brake on government, and seldom the other way around. Whenever the politicians stepped out of line, challenging the state's prerogatives or stirring up tensions, the state would step in. Since 1960, the generals have unseated four governments. The latest of these, led by an Islamist party that offered many of today's AKP bigwigs their first taste of politics, folded under the army's pressure in 1998.
The situation began to grow more complex after 2002, the year in which the AKP won the first of what were to become three consecutive parliamentary elections. As the party consolidated its strength - buttressed by a period of unprecedented economic growth - elements of the old guard attempted to fight back. The military flexed its muscles on several occasions, only to back down when the AKP cashed in on its increasingly popular support to call the generals' bluff. Where the military failed, the judiciary nearly succeeded. In 2008 Abdurrahman Yalçinkaya, a public prosecutor, applied to Turkey's Constitutional Court to have the AKP disbanded, alleging that the party had become a focus for anti-secular activities. Erdogan and friends received a severe warning and a slap on the wrist, a US$20 million (Dh73.4m) fine, but escaped banishment from politics by the narrowest of margins, a single vote.
A decade into the AKP's rule, the judiciary, infused with new blood, is no longer the monolith it used to be, says Özge Genç, head of the democratisation programme at Tesev, a Turkish think tank. Instead, it is a field of competing fiefdoms. "Prosecutors and judges are all political actors and ideological actors," says Genç. "Some of them are close to the AKP, some are close to the army, some to the CHP, and some to the police."
Yet there is concern that one of these fiefdoms has begun to outmuscle the others. The Gülen community, an Islamic group led by and named after Fethullah Gülen, a Turkish preacher based in the United States, is seen as a driving force behind many of the recent trials against Kurdish activists and army leaders. "Today, the Gülen community is the most powerful actor in the Turkish judiciary," says Orhan Gazi Ertekin, the co-chairman of the Democratic Judiciary Association. The AKP might have plenty of levers to pull, he says, but compared to the Gülenists it "lacks the cadres and the experience inside the judiciary."
To Ilhan Cihaner, a parliamentary deputy from the opposition Republican People's Party (CHP), no other group inside the judiciary can rival the Gülen movement's sway and degree of organisation. "It's generally accepted that many names close to the Gülen group have been able to become members of the judicial elite, including a large part of the Supreme Board of Judges and Prosecutors (HSYK)," Cihaner wrote in comments emailed to The National.
Cihaner himself is no friend of the Gülen movement. In 2010, Cihaner, then a powerful chief prosecutor in the eastern city of Erzurum, was arrested on charges of belonging to Ergenekon, the nationalist network accused of planning to topple the government. Cihaner was accused of abusing his power, falsifying documents, and planting weapons in the homes of Gülen supporters. He was later released due to insufficient evidence.
The standard narrative, until recently, was that the AKP and the Gülenists have been using their sway inside the judiciary to settle old scores with their political rivals, including the once-mighty generals, secularists and Kurdish nationalists. Yet if the ruling party and Turkey's largest religious movement had once entered a marriage of convenience, they now appear to be estranged. New signs of this emerged at the beginning of February 2012, after a special prosecutor said to be close to the movement subpoenaed the chief of the national intelligence agency, Hakan Fidan, a close ally of Erdogan, over his role in secret talks with the PKK. The government responded by removing the prosecutor from the investigation and rushed through a law barring prosecutors from investigating intelligence officials without prior authorisation from the prime minister.
In recent months, Erdogan, who initially lent his support to trials like Sledgehammer and Ergenekon, has grown uneasy with the prolonged detention of military officials. At the beginning of February, the prime minister criticised prosecutors who had indicted the former chief of staff of the Turkish army, Ilker Basbu, early last year on charges of fomenting a military coup. "Those who make this accusation may feel secure due to their current position of authority, but history will not forgive them," Erdogan warned. "The Turkish Armed Forces is a constitutional organisation, not a terrorist organisation. If you say this is the head of the constitutional organisation, all right. But when you said it is a terrorist organisation, you then render our Turkish Armed Forces as such. There is nothing forgivable about this, it is a grave error."
A week later, Erdogan made an appearance at the bedside of Ergin Saygun, a retired general sentenced to 18 years in prison in the Sledgehammer trial and hospitalised following heart surgery. Saygun's sentence had been postponed due to a medical condition. The unexpected visit was seen as an expression of sympathy not only for the ailing general but also for much of the military brass behind bars.
Other than such symbolic episodes, "the Gülen-Erdogan war" inside the judiciary, as Ertekin calls it, is almost completely hidden from public view. "Real politics" is being replaced by a struggle "conducted through insinuations and behind closed doors". Still, whatever the real nature and scale of the conflict, says Cihaner, the AKP and the Gülen movement may have no choice but to patch things up. Theirs is as much a marriage of convenience as of necessity. "If they start to fight between themselves, we can almost certainly say that no one will win."
Yet to focus exclusively on the AKP's and the Gulenists' machinations inside the judiciary is to overlook a number of other, much more deeply embedded problems. One of these, intrinsically wedded to the founding philosophy of the Turkish republic, is a judicial culture that places narrowly defined state interests over both individual rights and international norms.
During the early 2000s, the AKP oversaw a range of impressive judicial reforms, including a partial overhaul of the country's Criminal Code, the adoption of numerous international conventions, new laws on gender equality, and the lifting of some curbs on free speech. When it comes to the implementation of these, says Özge Genç, the judiciary has been slow to catch up. "We have tonnes of laws, like article 90 in the constitution, which prioritises international agreements over any kind of legislation, we have all kinds of guarantees of freedom of expression and democracy, but then you have judges and prosecutors that can interpret these laws in very different ways." Some judges, she says, go so far as to argue that article 90 was amended into the constitution at the EU's behest, "so they feel no attachment, no allegiance to this article". Their mission, essentially, is not to protect the individual from the state, but to protect the state from the individual.
Another source of concern is the all too cosy relationship between judges and prosecutors. Both groups are appointed and represented by the same institution, the Supreme Board of Judges and Prosecutors, both have their offices in the same parts of courthouses, both eat in the same canteens, and both usually live in the same residential compounds. Their place atop the judicial hierarchy, particularly vis-à-vis lawyers, is on full display in the courtroom. Where both the judge and the prosecutor - the symbols of state power - sit on a podium during the hearings, the defence lawyer, like the defendants and the rest of the public, is seated below.
Just as worrying is the nature of links between prosecutors and the police. All too often, says Genç, the police will collect all manner of evidence against groups seen as potential threats to state security, including Kurdish or left-wing activists, ultranationalists, or journalists, pack it into a file, and pass it on to a "friendly prosecutor". Often, the prosecutor in question will simply copy and paste the file's contents into his or her indictment "without analysing, reformulating or rewriting it, so that the police file becomes the indictment". This, she says, is one reason why indictments regularly reach thousands of pages, casting an impossibly wide net that is bound to ensnare many innocent people.
Although it may take many more years to restore trust in the Turkish judiciary, in Turkey and the EU alike, there may be some positive changes on the horizon. To begin with, the government has recently announced plans to table a new judicial reform package before parliament. The laws and amendments comprising it are expected to tackle issues such as the length of pretrial detention, conscientious objection, press freedoms and to limit the scope of Turkey's notoriously catchall terrorism law, bringing the definition of terrorism into line with the case law of the European Court of Human Rights (ECHR).
The last of these changes - assuming it ensures that only those responsible for direct incitement to violence are subject to prosecution - could lead to the release of hundreds if not thousands of Kurds detained during the four-year crackdown against the KCK. By ensuring conformity with ECHR rulings, Turkey may also see a drop in the number of cases - a whopping 17,000, second only to Russia - filed against it before the court.
Further down the line, there is also hope that Turkey will eventually adopt a new constitution to replace the one bequeathed to it by a military junta in 1982, two years after a coup d'état. The current constitution, based on vague concepts like laicism and nationalism, allows judges plenty of scope to prioritise ideology over individual rights and liberties. "If there's a different, new constitution, with an approach that is based on pluralism, diversity, multiculturalism and democracy, it would be a significant step," says Genç, "because then you'd have very few justifications for bad, anti-democratic judgments."
Piotr Zalewski is a freelance journalist living in Istanbul.