Turkey’s bar associations sceptical of judicial reform

Chairmen of three major bar associations in Turkey, the Ankara, Istanbul and Diyarbakır bars, called for judicial independence and said the Council of Judges and Prosecutors (HSK) must be restructured, in interviews with news website Bianet on Tuesday.

What needs reforming is not the law, but the mentality in law enforcement, Ankara Bar Association Chairman Erinç Sağkan said.

Turkish President Recep Tayyip Erdoğan announced a Judicial Reform Strategy Document in May last year, and parliament has passed three sets of bills since.

“But we have seen that judicial reform isn’t possible via legal amendments,” Sağkan said. “The necessary reform in mentality will come with making the judiciary independent.”

Sağkan criticised education quality in Turkey’s 120 law faculties, and proposed changes to the selection process for judges and prosecutors.

Among his suggestions were prioritising competence over references, and taping all interviews where a bar representative should be present.

Lawyers must be able to remain independent, and not face prosecution for taking on any client or be associated with any possible crime they may have committed, Sağkan said.

“Without such amendments, reiterating universal judicial principles like arrests being the last resort will not serve as judicial reform,” he added, criticising both Justice Minister Abdulhamit Gül’s recent comments and what he called the politicisation of bar associations with the multiple bar law that Turkey passed this summer.

Last week, Minister Gül said the criminal justice system must not cause any rights violations. Reasonable doubt did not work in favour of suspects in the past, because justice was “instrumentalised” by certain factions in the judiciary.

“Militants in the guise of judges,” Gül said, referring to followers of Islamic preacher and former ally of the government Fethullah Gülen who now stands accused of organising a coup attempt, “attempted to trample the law, but we are determined to uphold to the highest level with the presumption of innocence and right to a fair trial.”

When the judges and prosecutors Gül referred to were replaced in the wake of the July 15, 2016 failed coup attempt, the newcomers were selected over their loyalty to the “certain parties,” instead of their competence or qualifications, Sağkan said.

“We see that those who elect judges and prosecutors and create judges and prosecutors who are forced to bow down to political pressure are now complaining of this situation,” he added.

On top of a change in how HSK members are elected, the election process for the Constitutional Court must also be reformed, Istanbul Bar Association Chairman Mehmet Durakoğlu said.

“This is not the first shot at a judicial reform, another strategy document was announced in 2009,” Durakoğlu said. “In 2010, (the government) turned over the judiciary to Gülenists. The second reform document was announced in 2015, and a state of emergency declared in 2016.”

In last year’s strategy document, “there was no improvement, and many rights had regressed,” Durakoğlu said.

“The reform narrative beggars belief,” Durakoğlu said. “Talk of reform came to the fore after the finance minister resigned, which leads me to see it as a move to revive the crashed economy.”

Durakoğlu also echoed Sağkan’s call for judicial independence.

“We have been saying that the real issue is that law enforcement, the judges, prosecutors and police officers, have bad practices that go beyond legislation,” Diyarbakır Bar Association Chairman Cihan Aydın said. “The true reform is required for enforcers.”

Judges and prosecutors interpreting the legislation has major problems, Aydın said. “First, law enforcement should be trained. Without this, I don’t believe there will be improvement only via legislation.”

Aydın said judges and prosecutors refusing to heed the rulings by the Constitutional Court and the European Court of Human Rights and “issuing unlawful verdicts” must be dealt with before attempting progress by amendments to the law alone.

“When we pointed to the Gülenists organising within the judiciary, they laughed it off. Then they said they had been tricked. This is the same method,” Aydın said.

Aydın called on Minister Gül to start procedures for the so-called militant members of the judiciary to face investigations. “Otherwise, the reform won’t mean anything.”