IBA - Reaping the whirlwind

Reaping the whirlwind

With Turkey already in turmoil due to the migration crisis, violence in the south-east and rising numbers of Islamist attacks, the 15 July coup attempt could not have come at a worse time. Global Insight assesses the regime’s responses and the serious consequences for the rule of law. 

Turkey has seen its fair share of coup d’états over the past 60 years, but the sudden attempt by a faction of the Turkish army to overthrow the government on 15 July still sent shockwaves through the country. Within hours the coup had been thwarted, but the human toll was considerable: clashes between police, soldiers and protesters left about 270 people dead and a further 1,440 wounded. In an attempt to weed out conspirators from state institutions, the authorities swiftly arrested as many as 2,800 rebel soldiers and detained a similar number of judges and prosecutors thought to be followers of Fethullah Gülen, the US-based Turkish cleric whom the government blames for masterminding the coup.

As Global Insight goes to press, the crackdown persists as the country continues to operate under a state of emergency and thousands more soldiers, civil servants, judges, prosecutors, journalists, teachers and academics have been detained, suspended or dismissed for their alleged links to the Gülenist movement. Several lawyers told Global Insight that decrees issued by the government in the wake of the attempted coup have raised questions about the legitimacy of the arrests. ‘I’m not quite sure how many of the arrested people were actually involved in the coup attempt,’ says Sidika Baysal Hatipoglu, Managing Partner of B+B Law Firm in Istanbul and Vice-Chair of the IBA European Regional Forum. ‘We know that some of the judges that have been arrested were from Fethullah Gülen, but does that mean they deserve to be arrested? No. There should have been direct evidence found linking them to the military coup. This is the worrying part as there could be some innocent people that have been caught up in all of this and there have even been cases of arrested individuals committing suicide.’

Hans Corell, Co-Chair of the International Bar Association’s Human Rights Institute, says the judges’ rights have been violated on multiple levels. ‘This sort of blanket dismissal is in direct conflict with Turkey’s Constitutional protection for judges’ security of tenure and against unfair dismissal,’ he says. ‘It also disregards international legal standards, such as the UN Basic Principles on the Independence of the Judiciary, which provide that all decisions related to judicial suspension and dismissal should be the result of a fair hearing and be subject to an independent review.’

Tony Fisher, Chair of the Human Rights Committee of the Law Society of England and Wales, who has worked on a number of human rights cases in Turkey, says the situation has continued to deteriorate since President Recep Tayyip Erdogan announced in early October that he was extending the state of emergency by a further 90 days. ‘It’s not getting any better and there have been further swathes of dismissals and arrests, some of which have affected the judiciary and some of which have affected the executive staff within the justice system – a lot of them have also now been removed,’ Fisher says. ‘I think about 30 per cent of the judiciary has been removed now and that’s obviously having a substantial knock-on effect on the administration of justice both in the civil and criminal courts.’

A deteriorating situation

This isn’t the first time the Turkish government has interfered with the independence of the judiciary. A month before the coup attempt there was a nationwide reshuffle of judges and prosecutors and at the end of June Turkey’s Parliament passed a law effectively granting the President greater influence in judicial appointments. According to the Judicial Integrity Initiative: Judicial Systems and Corruption report published by the IBA’s Legal Policy and Research Unit in May 2016, 83 per cent of those surveyed in Turkey reported incidences of undue political influence on cases.

Indeed, Defne Bülbül, a criminal judge serving in the 6th Chamber of the Court of Cassation in Istanbul, told Global Insight that Turkey’s judiciary has always been politically influenced. ‘The political powers have always wanted to control strong apparatus such as the judiciary, so the judiciary has always been a clear target for political actors or other social powers,’ she says.

As Bülbül notes, when the ruling AKP party first came to power in 2002 it viewed the Gülen movement as an ally and duly allowed Gülenists to fill the highest ranks of the judiciary, police, army and intelligence services: ‘The AKP government had a good relationship with the Fethullah Gülen movement since the beginning. We understand that the AKP deemed the judiciary was functional under the control of the movement’s members. Therefore there were many judges and prosecutors in the judiciary from this movement that were employed by the government.’

However, many felt these appointments compromised the judiciary’s impartiality, says Cagdas Cataltas, Associate Director for Western Europe at Control Risks. ‘The Specially Empowered Courts, now believed to have been controlled by the Gülenists… tried controversial cases such as Ergenekon, Balyoz and the 2011 Football Match-Fixing case,’ he told Global Insight. Cataltas says the trials were ‘riddled with violation of due process, fabricated evidence and arbitrary arrests’.

Relations between the two groups soon soured, the AKP abolished the courts and declared the Gülen movement a terrorist organisation. ‘There was a substantial reorganisation of the judiciary and lots of people were moved around from place to place, in particular away from the trials relating to the corruption allegations,’ says Fisher. ‘Then there was a gradual process of the Executive interfering in the appointment system and disciplinary process for judges over the following 18 months before the attempted coup, so there had already been quite a substantial deterioration in the separation of powers before the attempted coup took place.’

The current structure of the High Council of Judges and Prosecutors (HSYK), which appoints judges and prosecutors, also isn’t helping matters, says Ümit Hergüner, a senior partner at Hergüner Bilgen Özeke in Istanbul. ‘The structure of the HSYK is still problematic as far as the independence of the judiciary is concerned, because the Minister of Justice and his undersecretary, who are obviously members of the executive branch, sit on the HSYK and have a say in the appointment and removal of judges and prosecutors,’ he says. ‘Further, the lumping together of the appointment and professional oversight of judges and prosecutors, who perform separate and independent duties in the criminal justice process, does not necessarily inspire confidence in the fair administration of justice.’

In light of this, Kristin Hausler, the Dorset Senior Research Fellow in Public International Law at the British Institute of International and Comparative Law (BIICL), says the government’s latest moves to restructure the judiciary are hardly surprising, but do raise renewed questions about political interference. ‘Constitutional amendments adopted in 2010 already allowed the President to appoint directly four members of the high council of judges and prosecutors,’ she says. ‘[But] of course, this creates a concern over the possible use of the courts to diminish the influence of the President’s political opponents.’

“ Turkey has always had such a pivotal role politically in terms of the links between the East and the West, especially now, with regard to the deal that has been made with the refugees

Tony Fisher
Chair, Human Rights Committee, Law Society of England and Wales

As Ayse Bingöl Demir, a human rights lawyer based in Istanbul, notes, the government’s actions towards the judiciary since the coup have merely underlined these problems. ‘The impartiality of the judiciary has been a really important issue for some time, but after the coup attempt it became more visible.’

Climate of fear

Of course, the judiciary hasn’t been the only group targeted either before or after the coup, says Hausler. ‘In addition to the arrest or suspension of individuals, news agencies, TV and radio stations, newspapers and publishers were also forced to shut down, which may be in violation of the right to freedom of expression,’ she says. ‘In the report published by BIICL in 2015, we highlighted that the recently adopted Anti-Terror Law and the New Penal Code have both been used to prosecute journalists, editors and publishers exercising their right to freedom of expression.’

However, both Hausler and Cataltas agree that the sheer scale of the government’s crackdown since 15 July on suspected Gülenist sympathisers should raise alarm bells from a human rights perspective. After the coup, the government decided that anyone who had not severed their ties with the Gülen movement after December 2013 was potentially a terrorist, says Cataltas. This knee-jerk and blanket reaction is maybe understandable for a state to survive after a failed coup, but it has resulted in violations of rights and in Erdogan’s own admission in September, the inability to “separate the wheat from the chaff”.

‘It is of course understandable that, following an attempted coup, a number of arrests or suspensions are likely to be conducted,’ says Hausler. ‘However, the number of individuals affected by such measures immediately after the coup raises a number of questions, in particular with regard to the existence of reasonable suspicion which is a requirement for an arrest to be lawful.’

Only fair trials will reveal the truth about those who have been arrested, says Hergüner. ‘We will not know whether all those accused of membership… were actually guilty as charged, or merely sympathisers of a religious cult, until they have been afforded fair trials. Of course, nothing will restore confidence in the rule of law until cooler heads prevail and we are assured that these trials are run and concluded transparently and in strict observance of procedural safeguards. But the judiciary is significantly understaffed now, with nearly half of its workforce having been removed from duty, so review of these cases will take some time.’

Bingöl Demir fears the decrees introduced since the coup may give carte blanche to the judiciary and law enforcement officials to not act in line with international human rights standards, particularly in relation to criminal procedures. ‘There have been a number of decree laws adopted and in some cases they simply waive people’s fundamental rights and freedoms,’ she says.

Before the state of emergency was imposed, the maximum period for being detained in police custody for terrorism-related offences or organised crime was four days. This has since been extended to 30 days and has exposed a number of issues. ‘According to one of the decree laws,’ says Bingöl Demir, the public prosecutor could order the first five days of the 30-day period to be incommunicado, applied as a rule so no lawyer is allowed to see their clients during this time for a catalogue of specified crimes including organised crimes, terrorism or coup attempt-related crimes. In practice though it has been reported that incommunicado detention can last more than five days and even throughout the whole period of police detention, which means that the arbitrary application of even decree laws is also a problem. Incommunicado detention is something that we are so against because it opens up suspects to torture or mistreatment and we’ve been hearing a lot of allegations about this.’

The migration crisis

It’s no secret that Turkey has borne the brunt of the migrant crisis, welcoming an estimated 2.7 million Syrian refugees into the country since the crisis began – more than any other country. In March, in a bid to reduce the overall number of migrants crossing into Europe, the European Union brokered a deal which would see Syrian migrants that do not qualify for refugee status returned to Turkey in exchange for resettling an equal number of refugees within the EU. Under the ‘one-in, one-out’ policy Turkey would receive €6bn in EU aid and Turkish citizens would be entitled to visa-free travel in the Schengen travel zone.

However, the EU has repeatedly pushed back the date for introducing the visa-free travel policy amid concerns over Turkey’s draconian counter-terrorism laws and the country’s deteriorating human rights situation since the attempted coup on 15 July was put down. Turkish Foreign Minister Mevlüt Çavusoglu has threatened to renege on the deal if the EU doesn’t allow visa-free entry for Turkish citizens by the end of 2016. Turkey also faces an increasingly fraught security situation in light of ongoing clashes with Kurdish rebels in the south-east and a rising number of terrorist attacks by Islamic militants, who are thought to be behind the bombing at Istanbul’s Ataturk airport that killed 41 and wounded 230 people on 28 June.

Amidst concerns for Turkey’s overall security situation, Vincent Cochetel, Director of the Bureau for Europe of UN Refugee Agency UNHCR told Global Insight that Turkey was still fulfilling its obligations. ‘Turkey continues its efforts to host in the region of 2.7 million refugees, and we shouldn’t forget that this is more than any other country in the world,’ he says. ‘Following the attempted coup, we have not seen an impact on the number of sea arrivals to Greece by Syrians or others. Turkey remains in a challenging position, and whilst it has made progress in recent years, its asylum system in particular for non-Syrian asylum seekers and refugees will continue to need serious support. UNHCR continues to work with the Turkish authorities to ensure effective access to protection for those qualifying for it, and to have access to all persons of concern.’

Cochetel says the efforts by other European countries to take in migrants were disappointing: ‘UNHCR regrets that the current resettlement efforts by European countries remain so modest in 2016 – so far less than 5,000 persons.’

Despite the many challenges facing Turkish society right now, Sidika Baysal Hatipoglu, Vice-Chair of the European Regional Forum and Managing Partner of B+B Law Firm in Istanbul, takes heart from the country’s stance on migrants. ‘Migration is the only thing that I’m proud of my country for in recent years,’ she says. ‘Although I’m not sure if we can take care of them perfectly, we have opened our arms to so many migrants from Syria and elsewhere. Should other countries be doing more? It’s not just a regional problem. We believe that other countries, not just European countries, but the US and others have to do more to accept and solve the situation, but exactly how this should be done I just don’t know.’

Bingöl Demir echoes the concerns voiced by Emma Sinclair-Webb, Turkey Director at Human Rights Watch during a recent plenary hearing on Turkey and the rule of law held by the European Parliament’s Committee on Foreign Affairs and Subcommittee on Human Rights. During the session Sinclair-Webb said the government’s actions since 15 July had contributed to a climate of fear that threatened to roll back human rights protections. ‘It really brings incommunicado detention back to Turkey and the very sad part of this is enormous steps were taken by the AKP’s previous governments to get rid of incommunicado detention,’ she said during the hearing in Brussels in October.

‘The torture problem that Turkey had historically… was largely tackled by the AKP, with a zero-tolerance policy for torture, which was really very commendable. But with measures like this – changing detention conditions like this – they are opening the door to going back to the past. This is a very serious development and one which the government should not want to be happening because they’ve taken such enormous steps in the recent past to stop torture.’

A lasting chill

An estimated 3,500 judges have been dismissed to date, leading to a backlog of cases in many of Turkey’s courtrooms. The delays are already taking their toll. ‘From a professional point of view, you just go to the court hearing as normal and just want to have some advance in the court case, but due to the lack of judges and prosecutors we are now seeing some delays,’ says Baysal Hatipoglu. ‘It’s easy for us to explain this to local clients because they know the situation here, but maybe for the international clients it’s not been quite so easy to explain why there is a delay because the judges and the prosecutors and whoever knew the files don’t exist anymore for this or that reason. In professional terms, this is the main concern from our point of view.’

For Bülbül, the prospect of an increased workload is probably the last thing on most Turkish judges’ minds right now. ‘The number of judges in the Chamber in the Court of Cassation, where I am working, was 23 and has now gone down to 10. This of course increases the workload, however, no one considers this right now. The colleague who you worked with a month ago is being arrested for being a member of theGülenmovement; his or her name is removed from the office door and you do not know if this colleague is innocent or not. It is hard to come to terms with all of this.’

“ There have been a number of decree laws adopted and in some cases they simply waive people’s fundamental rights and freedoms

Ayse Bingöl Demir
Human rights lawyer based in Istanbul

Bülbül, who until recently served as Deputy Chairperson of the Judges and Prosecutors Association (YARSAV) – one of the many institutions shut down by the government following the failed coup – says human rights need to be respected. ‘The Turkish judiciary has been experiencing a major trauma and we want a process which will protect innocent people. There were claims that some of the first detentions involved violence, so the process should provide clear results for all without violating people’s rights. This is a great test for the Turkish judiciary.’

There is also the broader concern that the government’s actions may have a longer lasting ‘chilling effect over the legal profession’, stresses Bingöl Demir. I have a number of colleagues that have been asked to represent people faced with coup attempt-related charges and they have not because of the fear of reprisals and the concern that they could be identified with their clients,’ she says.

Even before the coup attempt the harassment of the legal profession, particularly those working on human rights cases, was increasingly evident, notes Fisher, who has been observing the ongoing trial of 45 lawyers charged with terrorist offences related to their representation of Abdullah Öcalan, leader of the left-wing militant Kurdistan Workers’ Party (PKK). ‘The trial is a good example because the 45 lawyers were being represented by other lawyers,’ he says. ‘The last hearing was in March 2016, but two-to-three days before that hearing, some of the lawyers representing those lawyers were also arrested, taken into custody and have now been charged with terrorist offences. Two of them were pursuing cases at Strasbourg under the European Convention on Human Rights related to alleged human rights violations during the course of the curfews that have been imposed in south-east Turkey.’

Many lawyers in Turkey have been discouraged from taking on similar cases and the potential risks to their personal safety have only been exacerbated since the post-coup crackdown, says Fisher. ‘There are still some very brave lawyers operating in Turkey, but I think at the moment that it’s very difficult to pursue any particular remedies because of the state of emergency and the derogations from the Convention.’

“ This sort of blanket dismissal is in direct conflict with Turkey’s Constitutional protection for judges’ security of tenure and against unfair dismissal

Hans Corell
Former General Counsel of the UN and Co-Chair, International Bar Association’s Human Rights Institute

He points to Kurdish human rights lawyer Tahir Elçi as just one example of ‘a dedicated human rights lawyer whose life was in the firing line as a result of the pursuit of these types of cases’. Elçi, the former Chairman of the Diyarbakir Bar Association, was shot dead during a press rally on 28 November 2015 where he was demanding an end to violence between the Turkish state and Kurdish rebel group PKK.

Fisher, together with several other organisations, recently sent a letter of intervention to the UN calling for a thorough, independent and transparent investigation into his death, but says political will to do so for this or other human rights violations in Turkey is severely lacking. ‘It’s always been the case that Turkey has had such a pivotal role politically in terms of the links between the East and the West,’ he says. ‘Especially now, with regard to the deal that has been made with the refugees, politically it’s very difficult to make effective interventions and there’s no political will to do it.’

As for the judiciary itself, Fisher admits it’s a mixed picture, but urges those caught up in the storm to retain as much evidence as possible. ‘There are some judges that are still making very robust, independent decisions, but there are very few of them left and they put themselves at risk every time they do that. To me the most important thing in the immediate future is to collect and preserve evidence in relation to the violations that are taking place. Nobody knows what we can do with the evidence at the moment but if it isn’t collected then it will disappear forever. That’s what I’m more concerned about than anything else.’

Amidst these concerns, reports that the government wants to reinstate the death penalty are likely to put an end to long-stalled talks on Turkey joining the European Union. ‘It would completely finish off their application to join the EU – they wouldn’t be able to join if they still had the death penalty,’ says Fisher.

Such a move would pose an even greater threat to protecting Turkish citizens’ human rights, adds Hergüner. ‘Lawyers are concerned that if capital punishment is reinstated, like the government seems to want to do, Turkey could find itself outside the Council of Europe, with its citizens bereft of the protection of the European Convention on Human Rights and robbed of the chance to assert their rights before the European Court of Human Rights,’ he says. ‘They are concerned that the freedom of the press has been restricted, with opposition news outlets being pressured to self-censor their output. They are concerned that the judiciary is no longer seen as an impartial arbiter, but rather a tool in the hands of politicians.’


Ruth Greenis Multimedia Journalist at the IBA and can be contacted at ruth.green@int-bar.org