Euro court warns Turkey on judicial independence
A very important visit by the new president of the European Court of Human Rights, Robert Spano, to Turkey was lost in the shuffle for two main reasons: Turkey’s heavy domestic and foreign policy agenda, particularly the ongoing crisis in the eastern Mediterranean, and more structurally, Turkey’s lack of interest in valuing concepts like the rule of law, judicial impartiality and the separation of powers.
In Ankara, Spano met with President Recep Tayyip Erdoğan and Justice Minister Abdülhamit Gül. But his most important event in Ankara took place at the Justice Academy as he delivered a lecture to Turkish judges and prosecutors under the title of “Judicial Independence - The Cornerstone of the Rule of Law.”
Given the poor implementation of these principles by the Turkish judicial system, his messages to his young colleagues, as well as senior judicial authorities, were quite significant.
Here are some important points the ECHR president emphasized:
- Both the European Convention on Human Rights and the Turkish Constitution embed the concept of the rule of law and respect for human rights as foundational constitutional pillars. But what do we mean by the rule of law? While there is no abstract definition of the rule of law in the court’s case-law, the court has developed various substantive guarantees which may be inferred from this notion. These include the principle of legality or foreseeability, the principle of legal certainty, the principle of equality of individuals before the law, the principle that the executive cannot have unfettered powers whenever a right or freedom is at stake, the principle of the possibility of a remedy before an independent and impartial court and the right to a fair trial. Some of these principles are closely interrelated and can be included in the categories of legality and due process. They all aim at protecting the individual from arbitrariness, especially in the relations between the individual and the state.
- Governing in accordance with the rule of law is a fundamental premise for any governing structure in society in order to foster sustained allegiance and trust from the polity. Tyranny is, after all, the antithesis of the rule of law; oppression of their peoples is the external manifestation of a society where the rule of law has been abandoned by those in power.
- Those in power cannot, therefore, control the courts. To put it clearly, laws must not only apply to the populace, but also, and crucially, to those that hold the reins of power at any given moment. Ladies and gentlemen, no man or woman is above the law.
- An efficient, impartial and independent judiciary is the cornerstone of a functioning system of democratic checks and balances. Judges are the means by which powerful interests are restrained. They guarantee that all individuals, irrespective of their backgrounds, are treated equally before the law. The judiciary’s fundamental role in a democracy is to guarantee the very existence of the rule of law and, thus, to ensure the proper application of the law in an impartial, just, fair and efficient manner. Article 9 of the Turkish Constitution thus eloquently provides that judicial power shall be exercised by independent and impartial courts on behalf of the Turkish nation.
All these messages conveyed through carefully chosen words do, in fact, display the existing deep problems of the Turkish justice system. In many cases, lower courts do overrule the higher courts, including the Constitutional Court and find ways to bypass the ECHR rulings as we have seen in the cases of one of the former co-chairs of the Peoples’ Democratic Party (HDP), Selahattin Demirtaş, or civil society activist Osman Kavala.
It is also noteworthy that the Council of Europe demanded the immediate release of Kavala on Sept. 4, just a day after Spano’s visit and as a result of a ministerial meeting.
It’s very unfortunate that Turkey has failed to correct its deficiencies in justice and delayed prioritizing the principle of the rule of law, even though the Turkish charter makes it one of the fundamental pillars of the state.
The justice minister has suggested that the new human rights action plan to be released soon will address all these problems, but at this point, the Turkish people need more deeds than words when it comes to justice.
