By: M. Uzeyir Karabiyik, Judge, Department of International Law and Foreign Relations, Turkish Ministry of Justice

After the collapse of the Ottoman Empire, the administration of the newborn Turkish Republic had no time to lose to establish the necessary institutions and adopt a law system for the Republic. The country had been suffering from wars and political and social turmoil for more than a century and therefore the new administration wanted to stabilize the situation and create a society of peace immediately. At that point, the administration turned its face to the European countries that have relatively advanced legal systems. The Turkish judicial system was restructured in parallel with the European civil law. The laws, including Civil Code, Penal Code and Code of Criminal Procedure, were extracted from the European countries. The traditional judicial institutions of the Ottoman era were abolished and new ones were established by taking example of the institutions of western countries.

Just like any other country, Turkey was affected by the extraordinary speed of globalization, especially in the second half of the 20^th century. The population increased sharply, the economy boomed, and the need to interact with other countries was felt strongly. Social, cultural and technological developments started to shape the expectations of the society from the government. Turkey wanted to become a member of the European Union in order to gain a place within international society. It was obvious that a comprehensive judicial reform was required to be able to keep up with all of these developments and to be able to satisfy the demand and expectations of the international community. Nevertheless, apart from minor changes and legislation, there was not a worthwhile change in Turkish judicial system until the first decade of the new century.

Most Turkish citizens, especially the actors in the judiciary, were suffering from the insufficiency of the judicial system. In fact, the root causes of the main problem were very well known. The backlog of both first instance courts and high courts reached unexpected levels. Most particularly, the backlog of the Court of Cassation forced the court to drop thousands of cases annually when the statute of limitations expired. In parallel with the fast developing economy and the increasing population, the number of the cases in the courtrooms escalated dramatically. The work overload and the limited number of judges and prosecutors gave rise to lengthy trials and loss of rights of the citizens. People started to think that  offenders were getting away with their crimes and other unlawful acts without feeling the pressure of the law enforcement authorities. Systemic dysfunctions in the justice system were adversely affecting the enjoyment of human rights and fundamental freedoms. These negatives hurt Turkish people’s confidence in the justice system and changed their perception of the quality of justice available to them.

Until 2002, Turkey had mostly been governed by coalitions of political parties. There had always been turmoil within Turkey’s political arena. The government was trying to remain standing and to maintain its continuity in this tormoil rather than seeking sustainable solutions for the country’s chronic problems. Therefore carrying out a program of judicial reform was not seen as a priority and the authorities delayed dealing with the problems of the judiciary again and again. In 2002, the Justice and Development Party (AKP) came to power alone. The government felt an immediate pressure from both its citizens and international society, including European Union in particular, to improve the judicial system.

Within the period of 2001-2008 there were key developments that signaled comprehensive future judicial reform. State Security Courts, established after the 1980 coup d’etat and one of the fearsome institutions of the military regime, were abolished in 2004. In their place, Specially Authorized Courts (OYMs), with vast jurisdiction and extraordinary competence, were established. The decisions and the authority of the OYMs were two of the most controversial topics on Turkey’s recent political agenda. The death penalty in criminal cases was revoked with the government’s ratification of Protocol 6 of the European Convention of Human Rights. A special, gigantic internet-based project called National Judicial Network Project (UYAP) was launched in order to streamline the judicial proceedings and facilitate access to justice. The UYAP has gained the admiration of many international institutions and received numerous international awards, including an award from the United Nations. The Turkish Justice Academy was established to serve as a training and consulting center not only for judges and prosecutors and but also for lawyers working in the private sector and legal scholars. Regional Appellate Courts were established with the adoption the Law No. 5235 in 2004. These courts were expected to cut the workload of the Court of Cassation by 50 percent or more. Despite the immediate need, they have not been activated so far because of lack of facilities and limited number of judges and prosecutors. Regional Appellate Courts are expected to be operational in 2013.

In 2009, the government adopted a Judicial Reform Strategy including measures relating to independence, impartiality and professionalism of the judiciary, access to justice, and improvement of penitentiary standards. Adoption of this strategy was also seen as necessary for the Judiciary and Fundamental Rights Chapter of the European Union accession negotiation process. Since this strategy called for fundamental changes in judicial institutions, a constitutional amendment was required to put it into practice. Main opposition parties and some NGOs argued against the strategy and accused the government of trying to bring the judiciary under its control. After intense debates, a referendum was held in September 2010 and the Turkish people voted for the amendment.

The key ingredient of the amendment was the restructuring of the High Council of Judges and Prosecutors (HSYK) because of its unique authority to make judicial appointments and make decisions on almost every issue regarding the judiciary. Before the amendment HSYK had seven members: three members from the Court of Cassation, two members from the Council of State, and the Undersecretary of the Ministry of Justice; the Minister of Justice as the seventh member served as President.  Judges and prosecutors who were not members of the High Courts did not have the right to be a candidate for HSYK membership; they did not even have the right to vote. The Council had no allocated budget and staff. It had to ask the Ministry of Justice to cover its expenses and provide secretariat services in order to be able to carry out its duties. This arrangement, financial assistance and secretariat services being provided by the Ministry of Justice, a political institution, was seen as a real danger to the Council’s independence and impartiality. With the amendment the new HSYK is made up of 22 members, ten of which are directly elected by votes of the judges and prosecutors serving on the first instance courts. Lawyers and legal scholars gained the right to be members of the Council. The new Council became a constitutionally authorized,  independent institution with its own budget and staff. On the other hand, the Minister of Justice kept his position as the President. Many legal scholars argued that having a politician as its President, even with limited authority, would harm the impartiality of and would make the Council subject to political influence.

The composition of the Constitutional Court was also changed by the amendment. The number of the members of the Court was increased. The most relevant provision of the amendment is that the Parliament would select some of the Court’s members. With the amendment, individuals gained the right to submit petitions to the Court for human rights violations. Thus, the Court started to be considered as a national court of human rights.The amendment also provided for an increase in the number of members of both the Court of Cassation and the Council of State and the appointment of hundreds of rapporteur judges to these courts to streamline the proceedings and facilitate the fight against backlog.

As for the OYMs, these courts have been subject to political debates as well as judicial criticism since their establishment in 2005. Very high profile prosecutions with which no prosecutor dared to deal before were well handled by the specially authorized prosecutors. Comprehensive operations conducted by these prosecutors resulted in pre-trial detention of a large number of high-ranking military officers, politicians, journalists and writers. They were accused of attempting coup d’etats and carrying out activities in order to overthrow the government by anti-democratic means. Opposition parties have claimed that these people were put in prison to suppress the opposition, and asserted that OYMs have lost their impartiality and became the tools of the government. Opposition parties also nominated some of these prison inmates as candidates for Parliament in the 2011 general elections. The fact that eight of them were elected and that they have not been released has intensified the debates. The government backed the OYMs until a specially authorized prosecutor accused the intelligence chief of Turkey of having interactions with a terrorist organization and called him in for interrogation. This action was criticized on the grounds that the prosecutor exceeded his competence and tried to interfere with the executive power of the country. In July 2012, a law curtailing the powers of OYMs and replacing them with regional terrorism courts was enacted. This law also obliges prosecutors to obtain permission from relevant authorities to be able to prosecute the officers of the top state institutions, including the National Intelligence Organization (MIT).

Admittedly, thanks to the recent reforms, the Turkish judiciary is more independent and powerful today. On the other hand, it must be acknowledged that very limited progress has been made on the issue of long pretrial detention periods. Furthermore, lengthy trials, work overload of the courts, insufficient number of judges and prosecutors, and insufficient capacity of detention centers are still critical problems and remain as challenges to the judiciary. Nevertheless, considering the speed of the recent judicial improvements, there is good reason for optimism that these challenges will be met.

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