Turkey and the rule of law

Few coups end well. The latest coup in Turkey has been put down with much brutality and democracy of sorts has been restored.

Following the failed coup has come the purge. The catalogue of those who have been arrested or dismissed includes 2,745 judges. The list of those arrested, dismissed and suspended from the police, the army, the education system and public service grows by thousands daily.

Respect for the separation of powers, freedom of expression and the rule of law has been under threat in Turkey for a long period of time prior to the attempted coup. The Law Society Human Rights Committee has been following the plight of 46 lawyers accused of terrorist offences for doing their job as lawyers for over four years. Interventions have been made in relation to numerous other situations in which lawyers in Turkey have been persecuted for representing defendants unpopular with the regime.

Since the end of 2013, when corruption allegations against senior state officials broke and began to be investigated and prosecuted, the focus has also turned to the judiciary. The minister of justice has acted as ex officio president of the high council of judges and prosecutors and has had a right of veto to decide on disciplinary proceedings against judges and prosecutors. In 2014, legislation also gave the minister increased powers to appoint the staff of the council’s secretariat.

Powers which are not subject to judicial review. Cases have been launched against prosecutors and judges dealing with high-profile cases. These include cases involving allegations of corruption and alleged transfers of weapons to Syria.

Those investigating and prosecuting these cases have been suspended or dismissed. Others have been detained. A number of disciplinary and criminal cases against judges and prosecutors seem to have lacked due process. Hundreds of judges and prosecutors have been re-assigned into other posts whilst in the middle of long and complicated trials.

All of these moves have attracted widespread criticism from various organs of the Council of Europe, the United Nations, and individual bar associations across Europe. In November 2015 the latest EU accession report on Turkey recorded that 'the independence of the judiciary and respect of the principle of separation of powers have been undermined and judges and prosecutors have been under strong political pressure’.

In the weeks leading up to the coup a further resolution of the Parliamentary Assembly called on Turkey to reduce the executive power exercised over the judiciary.

It is against this background that the decision to dismiss, arrest or suspend thousands of judges almost immediately after the coup had been crushed should be seen. It appears an opportunistic attempt to secure even greater executive power over the judicial process without the need to follow due process in terms of securing an independent investigation into the role of these members of the judiciary (if any) in the coup.

On 19 July several UN Special Rapporteurs from the office of the UN High Commissioner for Human Rights issued a statement calling for “the authorities to release and reinstate these judges and prosecutors until credible allegations of wrong doing are properly investigated and evidenced.”

There is not much hope that this call will be met. Democracy has been protected only for it to be undermined. These are dark days for Turkey, for Europe, and indeed for stability in the whole region. As lawyers we have no other power than the power to intervene, to support those struggling to uphold the rule of law and the independence of the judiciary.

To demand due process be followed and support the profession in Turkey. The Law Society will continue to do that. To keep hope alive that Turkey will not slide further into authoritarianism. As the UN statement confirmed on 19 July: 'In times of crisis, respect for human rights and fundamental freedoms is more essential than ever.’

Let us hope those words are heard in Ankara and Istanbul.

Tony Fisher is the chair of the Law Society Human Rights Committee