The cleansing of Turkey’s judiciary may be necessary – but only after open and thorough investigation.
Last weekend’s attempted coup was organised by a small group within the armed forces of Turkey, which would be a powerful force if it were mobilised. Thanks to the rest of the armed and security forces, as well as the people of Turkey, it was not.
Unsurprisingly, in the aftermath a nationwide investigation started against those responsible. However, during the investigations, search warrants were issued for 2,854 judges and prosecutors. Currently 1,481 judges and prosecutors are already in custody. Given that there are approximately 15,000 judges and prosecutors in Turkey this means that one-third of Turkey’s judiciary has been removed from duty – and one in 10 of its members is in custody.
The judiciary will certainly struggle to replace members quickly enough while still delivering justice. To complicate matters, all this has happened just before the launch of a major reform to the litigation structure, the setting up of courts of cassation which will create a three-tiered court system. Concerns about the capacity of the judiciary to handle this reform were widespread even before the removal of one-third of its members.
The only relief is that the judicial holiday in Turkey begins today (20 July), which means cases will be delayed until the opening of the new judicial year in September. Therefore, the absence of judges may not be felt if necessary organisational steps are taken in August.
It is also worth noting that the investigations against judges and prosecutors for Gulenist sympathies have been underway for more than two years. Following the coup attempt, however, those administrative investigations have turned into criminal ones and extraordinary interim measures have been taken overnight.
As we do not know the level and existence of evidence linking a third of Turkish judiciary to the failed coup attempt or terrorist activity it is difficult to comment on to what extent the rule of law has been ignored. The authorities are currently acting as if martial law has been declared.
With intelligence suggesting that further coup attempts are on the way, the government’s inclination to take suspects into custody regardless of their position might be understandable at this stage.
In my view there is also a sense of frustration among lawyers at the activities of Gulenist prosecutors and judges. A large proportion of Turkish lawyers believe that those judges paralysed the judiciary’s function by giving more weight to their religious ideology and agenda rather than the rule of law. They caused many miscarriages of justice and hindered even the selection of chairmen of high courts.
They even penetrated into the high counsel of judges and prosecutors in which way affected the inspection, appointment and ranking of judges and prosecutors. All these steps cumulatively damaged the judiciary’s quality.
Over the past five years, we have witnessed examples of biased criminal investigations, imprisonment decisions, administrative and commercial court decisions in Turkey that ignored the rule of law in its entirety. Many of those miscarriages of justice were linked to those judges or prosecutors who are or claimed to be Gulenist.
A cleansing of the Turkish judiciary was therefore much-needed, but it must follow a proper, thorough and open investigation. The immediate arrests and unseating of judges and prosecutors after the coup attempt has rightfully raised questions, especially as the administrative and criminal investigations are conducted in secret.
If the investigations are carried out objectively and openly, respecting the rule of law without politicising the process, I believe such concerns will largely fade away.
Finally, the aftermath of the attempted coup has created an increased awareness of the democratic powers of society and of a more self-confident and peaceful, yet dynamic Turkey on the international scene.
Orçun Çetinkaya is a partner at Moroglu Arseven, Istanbul