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41. The High Council of Judges and Prosecutors in Turkey: Roundtable Discussion on Its New Structure and Operations

Author:
Onur Bayramoğlu
Publication Date:
01-2013
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
One of the most critical areas of reform in Turkey’s recent history involves the judiciary, which has served to corroborate the tutelary regime. With a discourse emphasizing that the judiciary itself must also be bound by the “rule of law”, the Justice and Development Party (JDP) took a number of steps toward reforming the administration of supreme judiciary bodies, as well as the judiciary in general. The constitutional amendments brought to the ballot in the referendum of 12 September 2012 essentially represented an initiative to transform the judiciary. The amendments package was intended to equip the Constitutional Court and the High Council of Judges and Prosecutors (HSYK) with a more pluralist structure. This report titled “the High Council of Judges and Prosecutors in Turkey: Roundtable Discussion on its New Structure and Operations” is based on discussions of the roundtable meeting attended by representatives from judges and prosecutors professional associations such as YARSAV (The Association of Judges and Prosecutors) and Demokrat Yargı (Democratic Judiciary Association), which adopted divergent positions over the course of the referendum; one representative from HSYK, the direct addressee in the debate; and experts with diverse opinions. With the roundtable, we intended to generate direct discussion by experts and practitioners of the field in a small group affording sufficient time for speakers. As a result, we treated the current situation and practice through an insider’s perspective and in detail. This also provided a shared platform where parties coming from varying political positions exchanged opinions regarding both the HSYK and several contested aspects of the judiciary reform. The roundtable ensured that critiques were communicated to and discussed with the directly relevant parties through face-to-face conversations.
Topic:
Democratization, Law, Rule of Law, Justice, and Judiciary
Political Geography:
Turkey and Middle East

42. Egypt's Judges in a Revolutionary Age

Author:
Nathan J. Brown
Publication Date:
02-2012
Content Type:
Working Paper
Institution:
Carnegie Endowment for International Peace
Abstract:
Egypt's tumultuous uprising of 2011 was about many things, but among the most central was a demand by legions of political activists and large crowds of mobilized citizens that public authority in the country be reconstructed to operate in a clearly accountable manner, fully governed by the rule of law. Egyptian judges might therefore be expected to look upon the post-uprising environment as a time when they can finally realize a vision that they have been articulating for a generation in the face of an imperious and impervious presidency: A state ruled by law in which they will be insulated from political pressures and private interests, providing full autonomy to individual judges and to the judiciary as a body to issue decisions that will be respected and implemented by all the agencies of the Egyptian state.
Topic:
Democratization, Regime Change, and Law
Political Geography:
Middle East, Arabia, and Egypt

43. Monitoring Report Making of a New Constitution in Turkey: October 2011-January 2012

Author:
Ferhat Kentel, Levent Köker, Mehmet Uçum, and Özge Genç
Publication Date:
02-2012
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
The redefinition of relations between state, society and individuals in the framework of a new state philosophy in Turkey and the transformation of the mentality of both the state and society along this line will carry Turkey onto a more democratic, pluralist and conciliatory political sphere. One of the milestones of this process is the making of a new constitution, that is initiated by the Turkish Parliament following the general elections of June 12, 2011, and expected to culminate in the adoption of a new founding document. An ideal constitutional process should be based on the demands and contributions of social groups and individuals and groups should be empowered to engage in politics in a way that has not yet been possible during the preparation of any other constitution in Turkey. On the other hand, presently, it is obvious that on a societal level there is an environment of lively yet stifled debate regarding the new constitution, as well as a number of flaws and issues in terms of how the process is functioning. However, the Constitutional Reconciliation Commission, formed in October 2011 with equal participation from all political parties represented in the parliament, and its members who have reached a consensus on the commitment to establish a new constitution with apparently genuine effort, create the expectation that the preparation of a new constitution will soon make headway. In the subsequent stages, political actors, civil society and media should play a significant role in terms of both contribution to and monitoring of the process. The Turkish Economic and Social Studies Foundation (TESEV) Democratization Program aims to actively engage in the creation of a new constitution through monitoring, documenting and reporting on the process undertaken with the objective of meeting society’s expectations. Within the scope of this project, the role, contribution and performance of the parliament, political parties, non-governmental organizations and the media are monitored and both positive and negative developments are documented. Solution-oriented interventions that provide guidance will also be made whenever the process comes to a deadlock throughout the project. Via parallel projects, the Democratization Program will also be conducting scientific, informative, and solution oriented work regarding issues that obstruct the reform process and contributing to create a platform of democratic debate in Turkey.
Topic:
Law, Constitution, Justice, and Judiciary
Political Geography:
Turkey, Middle East, and Mediterranean

44. “Mills That Grind Defendants”: Criminal Justice System in Turkey from a Human Rights Perspective

Author:
Cüneyt Doğrusözlü
Publication Date:
03-2012
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
As Turkey continues to call herself a democracy, in reality she is still a country that strives to become democratic. It is only recently that we have recognized the structure of Republic as a tutelary regime, and have accordingly oriented ourselves towards a mindset required to deliver the desired changes in this structure. Presumably, the most important difference between democracy and a tutelary regime materializes in the concept of “the rule of law”. This principle requires all governmental bodies, including the judiciary, to be subject to law while taking into consideration the universal rights and freedoms. In Turkey, however, and also because of its privileged position created by the present coup d’état constitution, the judiciary sees itself as the definer of the law. Seen in this light, judicial reform emerges as one of the most critical steps that needs to be taken in moving ahead with the democratization process. With this insight, judiciary has been one of the key areas on which TESEV has focused its research activities in the last four years. In studies led by Mithat Sancar, the perspectives of first judges and prosecutors, and then of the society regarding the judicial system and its function, were scrutinized. These studies were all compiled in a book and published in May 2009. In March 2010, another study was published; authored by Meryem Erdal, the study explored into the media coverage by various organizations of some specific litigations, as well as the general approach of those same organizations to the judiciary. Thereby an opportunity was created to discuss the problems of perception surrounding the judiciary system. Democratization of the judicial system, however, requires carrying out a policy of “reform” and sharing this policy with the public. Such a reform would need to evolve around two pillars: First requires reconsidering the concepts of “independence”, “impartiality” and “legitimacy” in the context of the system in its entirety and the position of the judiciary, with the aim of ensuring that they are compatible with the international norms. In this context, the relationship between the executive branch and the judiciary, the position of the judiciary between the official ideology and universal law, and election system of higher judicial bodies appear as major problematic areas. The report titled, “A Judicial Conundrum: Opinions and Recommendations on Constitutional Reform in Turkey” edited by Serap Yazıcı and released in May 2010, discussed these issues that also constitute the subject matter of the government’s judicial reform, from the point of view of universal democratic criteria, and provided a meaningful basis for the direction and framework of the reform. On the other hand, the judiciary needs not only a systemic reform, but also a new perspective as a mechanism in order to meet citizens’ need for justice. The report titled, “Access to Justice in Turkey: Indicators and Recommendations” authored by Seda Kalem and released in June 2011, explored one of the major issue areas of demand by the citizens from the judiciary: the problem of “access to justice”. TESEV Democratization Program’s third policy report on Judicial Reform titled, “Mills that Grind Defendants: Criminal Justice System in Turkey from a Human Rights Perspective”, authored by Osman Doğru delves into the problematic aspects of the criminal justice system in Turkey with a comparative approach through European Human Rights Convention’s legal framework and implementations. The report focuses on the following problematic aspects of the defendants’ rights in Turkey: detentions without indictments; prolonged pre-trial detentions and lengthy trials; prevention of defendants’ access to legal counsel and the issuance of indictments based on unlawfully obtained evidences. In addition, Osman Doğru’s report critically evaluates the treatment of this issue in the Judicial Reform Strategy, produced by the Ministry of Justice and puts forth specific policy recommendations. We hope to conduce toward covering essential elements that have to be pointed out for a judicial reform, and respond to the public need for information and discussion of the matter.
Topic:
Democratization, Human Rights, Law, Reform, Criminal Justice, Justice, and Judiciary
Political Geography:
Turkey, Middle East, and Mediterranean

45. Disrupting the Shield of Impunity: Security Officials and Rights Violations in Turkey

Author:
Mehmet Atılgan and Serap Işık
Publication Date:
03-2012
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
This report addresses the issue of impunity, which has virtually become the norm, as far as the rights violations committed against citizens by law enforcement units in Turkey are concerned. As the authors of this study, Mehmet Atılgan and Serap Işık reveal the issue of impunity stems from a complicated penal law structure whose existence still prevails in administrative, legal and practical areas. In addition, as pointed out in the “Just Expectations: Compilation of TESEV Research Studies on the Judiciary In Turkey” report (2011), the state institutions’ protection by the judiciary in Turkey is an outcome of a certain mentality. Not only have the members of the judiciary but also many actors among the media and the civil society in Turkey demonstrate this statist mentality. Considering the multi-layered socio-political landscape of Turkey, it is not realistic to expect that the issue of impunity will be resolved in the short run or quickly. Hence, a stronger and more extensive struggle awaits the social actors who want to eliminate the issue of impunity. In Turkey, there are many dedicated lawyers and human rights organizations carrying out this struggle either through collectively organized campaigns or through individual efforts. In order to understand the structure of the struggle in this area and to produce solutions to rectify the shortcomings, TESEV Democratization Program (DP) held three meetings between November 2010 and April 2011 with a group of lawyers experienced in defending the rights of victims in lawsuits related to human rights violations committed by law enforcement units. In addition, the project team also attended the December 2010-July 2011 hearings of the court case of Temizöz and Others being administered at the Specially Empowered 6th Heavy Penal Court of Diyarbakir. Court cases that reverberated in the public domain, such as the Hrant Dink Murder, Engin Çeber and JİTEM (the Intelligence and Anti-Terrorism Unit of the Gendarmerie) cases were also addressed within the scope of this report. Of course, in terms of the issue of impunity, these court cases are nothing more than striking examples, as similar instances can be seen in the near future of Turkey. The state officials who are being tried as defendants in these lawsuits are charged with serious offences such as establishing an armed organization, committing torture in detention, unsolved murders, and enforced disappearance of persons. A significant part of these crimes are related to the extrajudicial executions known to be carried out against civilian Kurdish citizens in 1990s as part of the security policy of the state. Hence, these court cases are also of vital importance in a quest for the resolution of the Kurdish Question in a peaceful way. Additionally, these are court cases where the dissident intellectuals, revolutionist dissidents, and the asylum seekers whose rights are deprived of any guarantees under the national laws are also victimized. On the other hand, these cases are very important in terms of the civilian oversight of security institutions in Turkey, and the civilianization process which gained pace in 2000s but still seems to be at a far distance on Turkey’s horizon. The quest for justice through these lawsuits can only be successful if supported by the victims and witnesses of such cases. It is our hope that the studies carried out by TESEV DP will bring more public visibility to these court cases and encourage a wider population to seek their rights.
Topic:
Security, Human Rights, Law, Accountability, Transparency, Justice, and Judiciary
Political Geography:
Turkey, Middle East, and Mediterranean

46. Traveling toward the Rule of Law in the Middle East and North Africa: Avenues and Obstacles

Author:
Jason Gluck, Scott Worden, Colette Rausch, and Vivienne O'Connor
Publication Date:
04-2011
Content Type:
Policy Brief
Institution:
United States Institute of Peace
Abstract:
Popular uprisings throughout the Middle East and North Africa are demanding justice, security, and accountability— defining features of the rule of law. Constitutional reform is a priority, but it must be done by legitimate representatives of the people, not hangovers from the past. Principles of inclusivity, transparency, and participation must be at the heart of the process.
Topic:
Democratization and Law
Political Geography:
Iraq, Middle East, Kosovo, Nepal, and North Africa

47. Just Expectations: A Compilation of TESEV Research Studies on the Judiciary in Turkey

Author:
Eylem Ümit Atılgan, Meryem Erdal, Mithat Sancar, and Suavi Aydın
Publication Date:
02-2011
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
Since the European Union membership process has gained a central position in politics, Turkey has become focused on reforms and change. However, this requires not only political will but also social acceptance, as Turkey’s drawbacks originate also from the social mentality as much as from the state tradition. Therefore, how social perception is changing in the areas expected to go through restructuring and how ready the society is for the possible reforms is a very important question. TESEV studied this issue within the scope of a research on “Social Perceptions and Mentality Structures” a few years ago and presented the results of this research to the public in the format of four separate books. In addition to ideological frameworks such as religiousness, secularism and nationalism, these studies addressed the general approach to the state and the patriarchal environment evident in families, and revealed how perceptions are changing at the individual and collective level. However, there is another very important stratum between political will and social ownership, and Turkey’s need for reform perhaps shows itself most keenly at this point. This stratum is the state institutions. It looks like it is a must for virtually the entire bureaucracy, and mainly the armed forces, the judiciary and the police, to restructure in terms of mentality, organization and functions. Taking this into consideration, Turkish Economic and Social Studied Foundation (TESEV) Democratization Program (DP) decided to continue its studies on “Perceptions and Mentalities” with bureaucratic institutions and address the judiciary as the first institution. One of the main reasons behind this choice was that there were very few studies on the judiciary, an institution that is in a central position in terms of democratization, law, and state-citizen relations in Turkey. Taking this shortcoming into account, a research series comprised of three separate studies that complement each other were prepared with the aim to inform and guide the public debate on the judiciary in Turkey. Based on these research projects conducted between early 2007 and mid-2009, TESEV DP published three separate books on the judiciary in Turkey. It should be noted that the study does not cover the developments taking place in the judiciary after the first half of 2009. The first book authored by Mithat Sancar and Eylem Ümit Atılgan attempted to shed light on the mentalities of judges and prosecutors and how they approach 2 the concepts of state, justice and rights. The second book authored by Mithat Sancar and Suavi Aydın aimed to determine the perception of justice in the society and the functionality attributed to the judiciary as an institution in the public mind. The book demonstrates that terms such as equity and criminality are interpreted within a pragmatic framework, and reveals the social perceptions that hamper the establishment of an understanding of law based on universal principles. The third book authored by Meryem Erdal takes a look at the press as an essential area that functions as a bridge between the judiciary as a bureaucratic institution and the way justice and law are perceived in the society. This is mainly because the support of a powerful media is a requirement for the institutional transformation of the judiciary based on democratic principles and norms as well as for the formation of the social perception that seeks a transformation as such. This English edition consists of an extensive summary of each of these three books with the aim to present their core findings in one volume. Turkey’s requirements in its democratization process are the formation of a citizenship in conformity with the universal norms recognized today, along with its administrative mechanisms. The bureaucracy of law and, hence, the judiciary are in a central position as the indispensible guarantees of such a transformation. We hope that this study will make serious contributions to discussions on the reforms that will be made in such an important area...
Topic:
Democratization, Law, European Union, Media, Justice, Judiciary, and Society
Political Geography:
Europe, Turkey, and Middle East

48. Towards Turkey’s New Constitution

Author:
M. Murat Erdoğan and Serap Yazıcı
Publication Date:
04-2011
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
Turkey’s need for a new constitution is accepted by almost everyone today. In fact, this was a need that has been in existence since the day the 1982 Constitution was made, for the 1982 Constitution was not only antidemocratic in terms of the method it was made, it also did not fit the ideal of a democratic and pluralist-liberalist society in terms of its content. Indeed, with characteristics such as its official ideology, its hierarchical model that renders the society subject to the state, its unionist-uniformist structure that sees differences and diversity illegitimate and its sacrificing freedom for authority, the 1982 Constitution is far from the standards of today’s democracies, and goes against the structure and needs of the society in Turkey. Since the day it came into effect, various amendments have been made in the 1982 Constitution, essentially as a result of this need. Yet, although these amendments, particularly those made in 2001 and 2010, made considerable contributions to the liberalization and democratization of our society, this situation has not removed Turkey’s need to make a completely new constitution. Moreover, these amendments have also disturbed the current constitution’s integrity within itself. On the other hand, in the face of the will of voters revealed in the 2010 referendum on the constitutional amendments, making a new constitution has now become an urgent task that can no longer be ignored. During the last few years in Turkey, the method that should be pursued in making the new constitution has been broadly debated in the public. Foreseeing that political parties would open to public debate their own views and suggestions on the new constitution during their election campaigns, our working group had already announced to the public that the parliament formed at the end of this election would have the power to make the new constitution. Since then, various civil initiatives and formations have carried out activities to collect the demands of the people on the matter of the constitution, or opened their own suggestions to public debate. Meanwhile, news that some major political parties were also in similar preparations appeared in the media. As a result, in line with our own expectations and foresights, it is understood that this election campaign will also become a constitution campaign and that the new parliament formed after the June 2011 elections will embark on the task of making a new constitution. Accordingly, this situation has made it urgent for TESEV, a non-governmental organization, to share with the public its main views and suggestions regarding the new constitution.
Topic:
Law, Reform, Constitution, Justice, and Judiciary
Political Geography:
Turkey, Middle East, and Mediterranean

49. Toward a Solution to the Kurdish Question: Constitutional and Legal Recommendations

Author:
Dilek Kurban and Yılmaz Ensaroğlu
Publication Date:
06-2010
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
There is more to the dominance of “rule of law” or “supremacy of law” in a state than the mere availability of a constitution or laws, or the presence of judicial institutions. Indeed, it is a fact of history that even the bloodiest dictatorships had their idiosyncratic laws and courts. In addition, there are countless historical examples of tyrannical and oppressive policies being implemented through courts. Thus, in paying special attention to the matter, international human rights law emphasizes in the Universal Declaration of Human Rights that “…it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” Article 3 of the Statute of the Council of Europe follows suit: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms…” Article 1 of the European Convention on Human Rights, in addition, states: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” These and other instruments of law confer on the states substantial responsibilities for the protection of human rights. Of a state’s obligations in that regard, the most important include constitutional and legal recognition of citizens’ human rights, non-interference in individuals’ exercise of those rights as long as such exercise does not violate the freedoms of others, and protection of those rights against interventions by others. These obligations have also become sources and criteria for a state’s claim to legitimacy. In other words, states are now considered to be legitimate to the extent they recognize and protect human rights. As a matter of fact, the protection of states’ rights to sovereignty cannot hold its ground against human rights, thus no state can have recourse to the ‘non-intervention in domestic affairs’ discourse in the face of violations within that state’s borders. The judiciary is the most important mechanism that will check the compliance of government policies and practices with the law and protect citizens’ rights and freedoms. This is why all acts and transactions of the administration need to be subject to judicial review in a state where rule of law prevails. In short, the judiciary is the one and only power that will put the principle of the rule of law into practice. In order for the judiciary to serve that function, that is, to protect human rights, it is indispensable that constitutional and legal arrangements be compatible with human rights law. Put differently, implementing the principle of rule of law necessitates that the law should, instead of siding with the state, have an autonomous standing vis-à-vis the state. The law must maintain equal distance to the state and the citizen. Otherwise, it will not be able to serve its arbitral function between the two sides, and as a result, its legitimacy becomes contested. Considering Turkey in this light, one sees that the legal framework has adopted the ideology of creating a homogenous society and a modern nation, instead of securing all individuals’ rights. Founded as a modern state upon the remnants of the multi-religious, multilingual, and multiethnic Ottoman Empire, the Turkish Republic decided that it would not be possible for it to realize the plans to construct the new nation without denying room to the distinct identities. In line with the secularist and nationalist policies pursued as an outgrowth of this approach, the legal framework underwent a complete overhaul. It has become widely accepted today that Kurds were one of the primary targets of these policies. As a matter of fact, in addition to general legal and constitutional amendments necessary for a Turkey committed to human rights and the rule of law, a number of particular arrangements are also required for a lasting and democratic solution to the Kurdish Question. Constituting the main focus of this report, these arrangements can be broken down into two groups: constitutional and legal. Although the constitutional articles and legal provisions examined in detail and the regulations and statutes which occupy lesser space in the report might appear to have a general character and do not include the words “Kurd” or “Kurdish”, they are essentially instruments aiming to restrict Kurds’ fundamental rights and freedoms and practically causing indirect discrimination against the Kurds. It goes without saying that several administrative measures that do not necessitate any particular legal arrangements must also be taken to solve the Kurdish Question. Discussed as part of the debates on the ‘democratic initiative’, some of these measures include the restitution of names in Kurdish and other languages to places plastered with Turkish names, removal of nationalist slogans etched by the state onto mountain slopes in Turkey’s eastern and southeastern region, changing the militarist names given to schools in the same region, and appointment of Kurdish-speaking public servants in the region to facilitate the use of Kurdish language in accessing public services. Though they are outside the scope of this report, these administrative steps and similar others need to be negotiated upon with Kurdish political representatives and opinion leaders and put in practice soon.
Topic:
Human Rights, Law, Constitution, Legislation, and Kurds
Political Geography:
Turkey, Middle East, and Kurdistan

50. A Tale of Reciprocity: Minority Foundations in Greece and Turkey (English/Greek)

Author:
Dilek Kurban and Konstantinos Tsitselikis
Publication Date:
07-2010
Content Type:
Special Report
Institution:
Turkish Economic and Social Studies Foundation (TESEV)
Abstract:
This report aims to analyze the implications of reciprocity policies on the day-to-day lives of Muslim and non-Muslim minorities in Greece and Turkey, specifically their impact on the community foundations2 belonging to these minorities. With a specific focus on the property and self-management issues of Muslim and non-Muslim community foundations in Greece and Turkey, the report will try to situate the issue in its historical context and trace the evolution of the ‘community foundation issue’ from Lausanne to the present day. Drawing similarities and differences between the laws, policies, and practices of Greek and Turkish states vis-à-vis their minority foundations, the report will critically assess the progress made to this day as well as identify the outstanding issues. In the hope of contributing to efforts to develop a democratic, sustainable, and just resolution of the problems facing community foundations, the report will propose policy solutions to the governments of Turkey and Greece.
Topic:
Human Rights, International Law, Treaties and Agreements, Law, and Minorities
Political Geography:
Turkey, Middle East, and Greece