Hintergrund:

Türkei

Nr. 9 / 06. März 2014

Turkey: The Rule of Law under Threat

Charlene Rossler

Turkey’s formerly promising future path as a rapidly developing country and regional model of demo-
cratic reform is hanging by a hair for the sake of the government’s increasing disrespect for the rule of
law in terms of major interferences into the judiciary and the security apparatus, as well as in the me-
dia, in response to serious allegations of corruption.

“A Nation Whose Judicial Power Is Not Independent Cannot Be Accepted As A State”

(Mustafa Kemal Atatürk)

Allegations of corruption and accusations of plotting

“The rule of law is a system in which no one, including government, is above the law; where laws pro-
tect fundamental rights; and where justice is accessible to all” (worldjusticeproject). This principle,
which is deemed by political scientists as the corner-stone of a functioning democracy, is currently
among the topics constituting a fervent debate in Turkey and beyond, particularly regarding its future
direction. The larger debate about Turkey’s increasing democratic deficits, amid a number of important
steps enhancing the country’s democratic consolidation within the framework of the Helsinki Process
and the Copenhagen Criteria, started in recent years sparked by the ruling AK Party’s increasingly au-
thoritative stance on socially divisive issues as well as the suppression of critical voices in the interest
of the government. Political polarization and resistance reached its peak during the crackdown on the
Gezi Park protests last summer; while the end of the year brought forth a series of events challenging
the government’s credibility and legitimacy from yet another angle.

A court-ordered graft probe launched on December 17 that included the detainment of a number of
people with close ties to certain state officials, and upon which a chain of related occurrences unfold-
ed, triggered a rather regressive and controversial course of action taken on by the AKP and Prime
Minister Erdoğan. Corruption scandals, armament shipments, intelligence leaks and subsequent inter-

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ferences into the judiciary and the national security apparatus in the form of on-going mass purges
heated the debate on Turkey’s future political path anew. Weighing the state’s democratic gains
against its losses, particularly the recent infringements on judicial independence, analysts are even
speaking of a ‘crisis of state’. About ninety people have been arrested during the two waves of the
graft investigation in late December; among them the sons of three government ministers who subse-
quently resigned, and the general manager of the state-run Halk Bank. The ruling party’s response was
an immediate government reshuffle; the Prime Minister assigned ten new ministers to posts in his
administration, whereas he responded to the corruption allegations by dismissing or removing about
seventy police officers, including the Chief of the Istanbul Police force.

The newly appointed Chief, a former governor with no police career, firstly initiated a nationwide pro-
hibition of journalists’ access to police stations, which was deemed illegal by court decision. Further-
more, the second anti-corruption wave issued on December 25 failed due to the police’s refusal to
conduct searches and arrests upon court order; the leading prosecutor was taken off the case. In a
familiar enemy-of-the-state rhetoric, the government accused outside alliances of plotting against
Turkey, of staging a judicial coup aiming at shaking the country’s political and economic stability and
strength. The continuously aggressive-defensive statements by the Prime Minister most likely conceal
direct reference to the socio-political Islamic Hizmet or Cemaat movement, a former ally to the AKP,
that holds influence in state institutions such as the police and the judiciary. As opposed to the first
graft probe, where e.g. large amounts of money were found stacked in shoe boxes at the house of one
of the accused, the government has no hard evidence or convincing, solid arguments for supporting
its claims of being victim to plotters. Nonetheless, it seeks to cleanse the state’s institutions from
those officials involved in investigating the corruption allegations while framing these actions in
terms of uprooting a ‘parallel state structure’. Since December 17, about 7,000 police officials and
more than one-hundred judges and prosecutors were dismissed or relocated to different and mostly
smaller cities, or assigned to less influential posts.

Draft bill and mass purges impeaching the constitution and its 2010 public referendum

The government’s growing pressure on the security apparatus and its negligence of the judiciary’s
autonomous legal authority to execute investigative operations upon probable cause has been visible
throughout the past months on several occasions, raising serious doubts over the effectiveness of
these bodies in their functions as balancing and protective powers; hence, questioning the role of the
judicial process, the nature of the state, and the importance of constitutionalism in Turkey. The inde-
pendence of the judiciary in particular has recently been jeopardized by the country’s ruling elites,
most clearly discernible in the AKP’s proposal to restructure the Supreme Board of Judges and Prose-
cutors (the HSYK). This draft bill suggests to strongly increasing the Justice Minister’s powers, as for
instance concerning legal discipline and the appointment of judges and prosecutors. The bill has been
rejected by the political opposition and criticized by the European Union for being unconstitutional, as
the fifty-six articles contained therein aim, for the most part, at diminishing the constitutional guar-
antee of relative autonomy of the Board.

In addition to the attempt of changing rules and regulations in favour of the executive branch, the
Erdogan administration is repeatedly exerting pressure on members of the media, the police, and the
judiciary who are involved in investigating offenses such as money laundering, fraud, accepting
bribes, securing construction permits for protected areas, or searching trucks allegedly carrying weap-
ons from Turkey to civil-war torn neighbour Syria. What raises suspicion is that the government ap-
pears to protect the accused by punishing those who intend to, by legal means, launch an inquiry into

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the truth behind the accusations. To name a few examples, the MIT (National Intelligence Organiza-
tion) refused the inspection of a truck in the city of Van that was inducted by the state attorney upon
receiving a tip-off; the governor ordered the police to retreat. In Hatay Province as well as in Adana,
located close to the Syrian border, artillery-loaded busses were stopped and scanned as a result of the
prosecutors’ warrants. Adana’s local governor ordered the security forces to stop, the prosecutor was
reassigned elsewhere, and the officers conducting the operation in Hatay were removed from their
posts. Furthermore, court orders to examine allegations of bribery concerning highly ranked officials
at the Izmir Port were ignored by the police force, marking yet another intervention by the executive
that challenges judicial autonomy and the law.

Regarding the AKP’s direct confrontation to Turkish law, or more specifically the constitution, in form
of the highly disputed HSYK Bill, has been approved by Parliament’s Justice Commission, but the draft
has partly been frozen after the first twenty-two of its fifty-six articles. While this could be consid-
ered a positive outcome, it must be noted that those remaining articles of the draft bill which have
been adopted by Parliament imply the restructuring of the Turkish Justice Academy according to the
plan the entire bill is aiming at - the subordination to the Minister of Justice who is representative of
the executive branch. In spite of strong criticism from the opposition and the EU, the AK Party recent-
ly decided to reintroduce the HSYK-Bill to Parliament, which approved it on February 15. It is current-
ly awaiting the final decision of the Constitutional Court, to whom the main opposition Republican
People’s Party appealed for the third time on March 3, following President Abdullah Gül’s signing of
the bill into legislation on February 26. As a result, 600 members of the Board had to give up their
posts as Justice Minister Bekir Bozdağ immediately appointed new affiliates to these positions; the
top leading class of the Justice Academy has also been removed, and all decrees and resolutions en-
acted by the HSYK over the past four years were annulled. The balancing power of the judicial branch
of government has thus been diminished; the principle of the separation of powers is also heavily
threatened by the adoption of the bill. These developments, in combination with the above mentioned
actions impeding judicial independence and impartiality in favour of a power-battle over controlling
state institutions in the midst of major corruption scandals reaching up to highly-ranked officials,
indicate a rather self-serving approach to the rule of law by the Turkish governing elites.

In the Republic of Turkey, like in other states

formally governed by the rule of law, the
government’s institutions are split into three
power divisions: the legislative (the Turkish
Grand National Assembly), the executive
(the President and the Council of Ministers),
and the judicial branch (independent
courts). This formal requirement termed the
separation of powers, which emphasizes the
independence and impartiality of the judici-
ary including the judicial review of state
actions, seems to be at stake when looking
at current developments on Turkey’s political
scene. The latter part, namely a court’s au-
Istanbul / Copyright: Annette Fleck thority to examine an executive or legisla-
tive act and to invalidate that act if it is
contrary to constitutional principles, has been constantly hazarded since the first graft probe by ac-
tions subordinating the law to subjective elements such as power and will.

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“No branch of government is above the law, and no public official may act arbitrarily or unilaterally
outside the law” (legal-dictionary). In other words, as an approach to wielding power, constancy to
the rule of law in combination with accountability and curbing corruption can be understood as ‘good
governance’ within the schema of modern democratic states. In the case of Turkey, there have been
several long-standing shortcomings in this regard. Most of these deficits are the result of a tradition
of military coups which in turn brought forth a specific political culture protecting the state, supple-
mented by legal measures to facilitate this priority. The current constitution, a remnant of the last
military take-over of 1982, has thus been widely condemned by local groups and international actors.
The European Union in particular has been pushing the Turkish government within the framework of
the accession process to change the highly defective laws contained therein.

The government eventually decided for a constitutional amendment in a referendum in September

2010 that produced significant changes in support of Turkey’s democratic consolidation. The structure
of the HSYK was henceforth amended to ensure independent representatives and neutrals would de-
liver justice while reflecting the complexion of the broader judicial community and Turkish society at
large; to gain a more pluralistic make-up. Nonetheless, the EU Progress Report of 2013 criticized a
lack of objectivity in the jurisdictional process, and stressed the need to bolster institutional mecha-
nisms against corruption by pointing out that members of Parliament and other officials still enjoy
excessive immunities in this regard. Since reform programs need to be mindful of the respective na-
tional political culture they are built upon, the current backlash of the Turkish government in terms of
trying to undo the above mentioned changes fits into the pattern of protecting the state and its ruling
elites at the expense of democratic principles such as the separation of powers, the impartiality of the
judiciary, procedural and legal transparency, accountability, avoidance of arbitrariness, and above all
the supremacy of the rule of law.

The latter in particular appears to be ignored by the government in its most basic aspect, which is not
only ordinary individuals’ but also authorities’ conformity with formal legal rules. “The more prosecu-
torial decisions are based on the personal discretion of a government official, the less they are based
on law” (legal-dictionary). Thus, the guarantee for the rule of law in practice is an institutionalized
mechanism for checks and balances. Before the 2010 public referendum, crucial decisions related to
the military were exempted from judicial review; the people’s vote succeeded in disempowering the
military apparatus by restructuring the top judicial board in line with European standards. In order to
arrive at a more pluralistic structure, the members were thus elected by a community of 12,000 judg-
es and prosecutors. This judicial reform led to greater democratic legitimacy by establishing an ac-
countable and independent judiciary, whereas the AKP’s draft bill appears to aim at reversing this
achievement by drastically increasing the Justice Minister’s influence on the HSYK. The proposal fur-
thermore suggests to alternatively restructuring the board by having the parties in Parliament elect
the candidates according to seats held, which was also rejected by the opposition for exposing the
HSYK to political influence, especially due to the AKP’s overwhelming majority of parliamentary seats.

Moreover, the bill, as well as other actions by the government in relation to the corruption and smug-
gle investigations previously touched upon, is unconstitutional in terms of violation of Article 159 and
thereby also violating Articles 138 and 139 of the Turkish constitution. Article 159 stipulates that the
HSYK executes its duties and functions in accordance with the principles enshrined in Articles 138
and 139 - the independence of courts, which dictates that “legislative and executive organs and the
administration shall comply with court decisions; these organs and the administration shall neither
alter them in any respect, nor delay their execution”, and the security of tenure of judges and public
prosecutors, meaning that “judges and public prosecutors shall not be dismissed, or retired before the
age prescribed by the constitution” (Hellenic-resources-network). There are numerous examples from

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the past two months that show a clear breach of these laws on part of officials of the security force
and the government. Among those are the previously mentioned refusals of the police or the MIT to
follow gendarmerie tip-offs or allowing searches concerning illegal artillery transfers. These events
were in turn either the result of a governor’s order contravening that of the public prosecutor, or re-
sulted in the removal of those who intended to comply with the latter.

Obstructing the judicial process constitutes another blow to Turkey’s historically flawed system

Since 2005, following demands of the EU and civil society groups, the judicial police is obliged to take
orders only from the prosecutor in charge and prohibited from reporting to others. An attempt by the
AKP to establish that prosecutors must inform their superiors and thus dismiss this principle of inves-
tigative confidentiality a few days after the first graft probe was suspended by the Council of State
for violating the rule of law. It should be noted here that the line of superiority leads up to the Prime
Minister, who pursued this decree. However, the judicial police desisted court orders on several occa-
sions, as for instance in mid-January timed raids as part of a bribery investigation in Istanbul. Moreo-
ver, the Justice Minister granted permission to launch an inquiry into three prosecutors involved in
the operation. The leading prosecutors of the two anti-corruption operations of late December were
also removed, while one-hundred-fifteen others were reassigned by Istanbul’s new Chief Prosecutor,
including the attorney investigating bribery allegations at the Istanbul Fire Department- an operation
that was also hindered by the police.

Immediately after the first graft probe the government appointed two new prosecutors to lead the
investigation, thereby unrightfully intervening in the judicial process, since only those who initiated
the operation obtain comprehensive knowledge and understanding of the details involved. In a similar
manner, the Chief Public Prosecutor of Izmir was removed from his post after revealing to the public
that he was urged by the Justice Ministry’s Undersecretary to retract the court’s decision to investi-
gate corruption, fraud, and tender-rigging accusations at the Izmir Port and State Railways from the
police department. Interestingly, the bureaus most affected by the mass purges are those dealing with
financial crimes, smuggling, organized crime or terrorism, and the officials thereby afflicted were
usually assigned to less influential posts or moved from the main cities of Istanbul, Ankara and Izmir
to smaller municipalities. This cleansing of state institutions in the form of relocating and dismissing
an immense number of police personnel and public prosecutors in a very short time is highly ques-
tionable as these actions are not based on judicial judgements. Furthermore, in spite of the govern-
ment’s duty to investigate the graft allegations and other offenses thoroughly and impartially, the
Prime Minister and his party are framing the corruption probes as a ‘judicial coup’- a plot targeting
the prosperity and stability of the Turkish state.

In a political climate of growing tension and polarization, the perpetuation of this familiar notion of
enemies-to-the-state is far from being fruitful in bringing about results based on dialogue, modera-
tion and reason. Moreover, Mr. Erdoğan’s divisive rhetoric aims at convincing the remaining impres-
sive number of AKP supporters among the population that the current rather undemocratic actions
are essential to safeguarding Turkey’s future stability. The government’s tactics to divert from the cor-
ruption scandals, as well as the ways it is dealing with the corresponding procedures, fall short of
crucial democratic tenets such as transparency and accountability. While holding the right to self-
defence, the party in power still has certain duties, and must exercise them by publicly obeying the
law. In this respect it can be argued that the AKP contravened Article 285 of the Turkish Penal Code,
which criminalizes the violation of confidentiality, and even more so Article 288: attempting to influ-
ence the impartiality of the judiciary. The mass purges in the security apparatus and the judiciary, in

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addition to continuous pressure on other regulatory agencies such as media outlets, firms, banks, and
single individuals, constitute a major intervention in the judicial process and the entire criminal pro-
cedure on various levels. Not only is corruption antithetical to the rule of law, but allegations of brib-
ery, fraud et al. ought to be controlled by the courts and the prosecutor in charge, especially when
those are linked to the government.

Furthermore, the attempt to subordinate the judiciary to the state and the profiling of civil servants,
including about 2,000 senior officials, cannot be tolerated in a state of law and contravenes the 2010
constitutional referendum. Within the framework of a democratic institutional structure, the rule of
law in practice entails the plural representation of different political and social groups in the consti-
tutional bodies. Since the HSYK’s structure was adjusted along more democratic lines by the constitu-
tional amendment advanced by this government, the recent comparatively reactionary efforts to ab-
rogate these changes by that very government question its commitment to Turkey’s democratic con-
solidation and to the rule of law in general.

The Council of Europe and the Venice Commission maintain doubts over the compatibility of the HSYK
- amendments with the Turkish constitution and international standards on judicial procedures. When
looking at the immense number of cases brought before the European Court of Human Rights against
the Republic of Turkey since individuals could legally file complaints in 1987, a pattern is discernible
in which the Turkish institutional structure of the judicial bodies and related laws and regulations
habitually protect the state before the citizen. This reflex to safeguard the state is a clear remnant of
a legacy of military coups and of the 1982 constitution; the difficulties of properly implementing the
rule of law in Turkey are henceforth not of normative nature, but are the result of a tradition of ideol-
ogy-driven elites in the state’s constitutional branches. Thus, it appears as if the AKP is taking up the
paradigm of military tutelage of the Kemalist generals in terms of regarding the state as its property,
while regarding itself as the guardian of the unity and stability of the Republic.

Turkey’s democratic progress in serious backlash

Since the opening of accession negotiations

with the EU in 2005, Turkey’s tutelary re-
gime of prioritizing the preservation of the
state over that of its citizens, underwent a
number of reforms that were vital in trans-
forming the judiciary and other bodies in
order for stronger adherence to the rule of
law. However, analysts argue that these
changes rather served as revisions within
the system instead of altering the system at
large. Furthermore, when looking at the
political trend of the past three years, the
EU’s influence on effectively encouraging
Turkey’s democratic consolidation seems to
Protests in Istanbul against increasing censorship and obscure arrests / be steadily declining. Still, the current state
Copyright: Annette Fleck of political instability and economic uncer-
tainty does not repress a growing energy and movement within Turkey’s civil society, with a mush-
rooming number of NGOs and the nation-wide anti-government demonstrations sparked by the Gezi
Park protest. Nevertheless, this apparent commitment to democratic values and freedoms can be pit-

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ted against a possible loss of the notion of justice among the Turkish citizenry on the other hand. The
government’s most recent step in (digital) media censorship, by means of a newly adopted law that
permits its Telecommunications Directorate to ban websites without court consent and grants author-
ities’ access to internet users’ two-year-browsing-history records when demanded, only contributes to
a declining belief in and reality of being able to exercise civil democratic rights. The curbing of free
access to information in favour of a government-friendly media landscape is not compatible with in-
ternational human rights standards; the new legislation has been strongly criticized by the EU.

Before the AKP came to power in 2001 the Turkish state was in a situation of crisis akin to that of
today. However, the current loss of its democratic gains, the increasing polarization of society, and
the return of coup attempts on the state’s radar makes the latter more worrisome. If there really is a
plot against the incumbent government by an organization, it should be revealed via legal and legiti-
mate procedures in order to promote the supremacy of law. The reactionary activities of the govern-
ment that either halt or hinder the judicial process constraining corruption, and the hasty and ambig-
uous draft bill now granting the Justice and hence also the Prime Minister control over the Justice
Academy, in turn exposing the justice system to political influence, does not only undermine public
trust but also renders law enforcement agencies and the judiciary dysfunctional. Neither can the dis-
proportional power-balance among state institutions be considered legitimate. Upholding the rule of
law in practice requires a liberal democratic approach that avoids arbitrariness, and adheres to proce-
dural as well as legal transparency and accountability, including the effective judicial monitoring of
the state and government actions.

Charlene Rossler is a political scientist and currently an intern at the Turkey project of the Friedrich
Naumann Foundation in Istanbul.

Impressum

Friedrich-Naumann-Stiftung für die Freiheit (FNF)

Bereich Internationale Politik
Referat für Querschnittsaufgaben
Karl-Marx-Straße 2
D-14482 Potsdam

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