Justice and Jurisdiction in 2012

Justice and Jurisdiction in 2012

May 2012

Controversy and misconduct in Turkey’s judicial system promises further instability.

The experiences of 2011 and early 2012 do not promise hope for the rest of 2012. At the beginning 2010 there were concerns about two major issues regarding law and jurisdiction. The first issue was the enforcement of the new High Council of Prosecutors and Judges ( SCJP ) which was created after the constitutional amendment in 2010, and the second was whether the consternation resulting from the decisions of Specially Authorized High Criminal Courts would continue or not.

Acceleratingly since 2005 jurisdiction system has been used as a tool for political power to exert pressure on its opponents with accusations brought before High Criminal Courts under the cover of alleged plot of coup, democracy and freedom. Judicial decisions created a perception as if there was a deliberate political agenda. Reputable members of society were arrested and the flood of arrests identified with Silivri swing over intellectuals and opponents like the sword of Damocles. Through these controversial judicial decisions there is no doubt that the man in the street will get a message: “If the so-called untouchables are in prison, I should be very careful in my opposition.

 

Turkey’s judicial system is up to profound stirring. The laws regulating Supreme Council of Judges and Prosecutors (SCJP) was adopted to accommodate the constitutional amendments after the referendum of September 2010. SCJP is the most important body in Turkish judicial system. It deals with the admission of judges and public prosecutors of courts of justice and administrative courts into the profession, appointments, transfers to other posts, the delegation of temporary powers, promotion to the first category, the allocation of posts; decisions concerning those whose continuation in the profession is found to be unsuitable; the imposition of disciplinary penalties and removal from office.

SCJP’s first enforcement was to assign 160 new members to the Supreme Court and 51 new members to the Council of State. The President of the Supreme Court and the Council of State has been reconfigured according to the new perception. The jurisprudences of the Constitutional Court, the Supreme Court and the Council of State have begun to change as a result of this reconfiguration.

The SCJP proceeded to impose major changes with the relocation of nearly 5000 judges and prosecutors. One third of the total number of judges and prosecutors has been affected by these changes. Given the fact that nearly 4000 new judges and prosecutors took office over the last decade, it will be easier to understand how the new perception regarding the system of justice was strengthened by the appointments made in 2011.

Perhaps the most significant action taken by SCJP in 2011 was the dismissal of all judges who either failed to give an arrest decision, questioned the arrest decision or gave an eviction order concerning critical cases of specially authorized high criminal courts. Furthermore, if the judges were not reinstated, care was taken to select judges for important cases (such as the cases concerning press charges) amongst trusted judges and to establish a climate of complete control.

The Silivri Trials are another important problem and there were significant developments in this case during 2011. Unfortunately the perception and the legal enforcement of previous years continues. The Ergenekon Cases were followed by the Balyoz Cases in which high ranking military officials were put on trial. In these cases, it was notable that both retired generals and those on active duty were widely detained. The extent of which has meant that in the Naval Forces, the number of admirals in custody outnumber the admirals who are still on active duty.

One of the most important topics of 2011 was the periods of detention, and within the context of that, the jailed MPs. In the last parliamentary elections two CHP, one MHP and five BDP MPs – detained in connec connection with the Ergenekon Case when nominated – remained in jail despite winning the elections. Despite the criticism from the President of the Turkish Republic and the President of the TBMM to the Union of Turkish Bar Associations and all the legal institutions circles, the problems of long detention periods in general and the situation of detainee MPs have not been solved. The classical response from the government has been: “We do not get involved in the functioning of justice!

 Illegal phone tapping, a problem inherited from previous years, remained a standart code of conduct in 2011, too.

The widest range of detentions in 2011 were carried out as part of the case and investigation known as the KCK Case. The KCK (Kurdistan Communities Union) is the alleged urban wing of the outlawed ” Kurdistan Worker’s Party (PKK), which is recognized as a terrorist group by the United States, the European Union and Turkey. This case, seen as the most notable judicial operation of 2011, reached its peak in the last quarter of the year with the mass detention of lawyers and journalists.

Illegal phone tapping, a problem inherited from previous years, remained a standart code of conduct in 2011, too.

We must add the amendments in fundamental law provisions to the general changes in the law, in 2011. After the renewal of codes such as the Turkish Civil Code, the Turkish Criminal Code and the Code of Criminal Procedure in previous years, the Code of Civil Procedure (HMK) came into effect in October 2011. Difficulties in implementation due to these changes continued in 2011.

Turkey has become a “big brother is watching you” country where authoritarian understanding is the norm and freedom of speech – another basic human right – is suppressed juristication is used as a tool, causing everyone to become suspicious of each other. People are afraid to talk and judges are under extreme political pressure.

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