BACKGROUND: On December 31, 2010, an amendment to the Turkish Criminal Procedure Code came into force which set a limit of ten years for the length of time that a defendant could be held in prison without a confirmed judgment; namely, the approval of a verdict and sentence after the exhaustion of appeal processes. Given the often tortuously slow pace of judicial processes in Turkey, the result was the release of hundreds of convicted criminals. They included 26 members of the militant Islamist organization usually referred to as the Turkish Hizbullah who had been found guilty of involvement in more than 150 murders during the late 1990s. Most have now gone into hiding. Some are believed to have fled the country through Turkey’s notoriously porous borders.

The result was a public outcry, with the AKP’s secularist opponents unfavorably comparing the government’s laxity towards militant Islamists with the regularity with which its perceived critics and enemies are prosecuted and imprisoned on the flimsiest of charges. In reality, the release of the Hizbullah members appears to have been the product of incompetence rather than a conspiracy. The amendments to the Turkish Criminal Procedure Code were passed in 2005 and the date for their implementation set years in advance. Yet it was only when convicted criminals began to walk free in January 2011 that either the AKP or its opponents reacted to the consequences.

The AKP’s response was to accelerate plans to reform the appeals system, which officials claimed was the main reason for the time taken to complete judicial processes. A statement released by the Ministry of Justice claimed that, in addition to the release of convicted criminals, the overloading of the judicial system also meant that nearly 20,000 cases had to be dropped in 2010 alone because they could not be concluded within the time limits set by law. The ministry predicted that, unless reforms were implemented, 25,000 more cases would have to be dropped in 2011, rising to 32,000 in 2012, 42,000 in 2013 and 55,000 in 2014. The ministry maintained that the main bottleneck was the appeals process, noting that there were 1,831,419 cases waiting to be heard by the appeal courts in late 2010, up from 1,091,392 at the end of 2006.

The package of reforms presented to parliament on January 24, 2011 proposed expanding both of Turkey’s appeals courts. The number of members of the Yargıtay, or Supreme Court, which is mainly responsible for criminal cases, would be increased from 250 to 387. While the number of members of the Danıştay, or Council of State, which handles appeals related to administrative cases, would rise from 95 to 151. In addition, the AKP proposed making all decisions of the Yargıtay and the Danıştay subject to appeal to the  Constitutional Court.

IMPLICATIONS:Turkey’s legal system has long been dysfunctional. Corruption is rife, while standards of evidence and respect for due process frequently fall well below internationally established norms. Suspects are held for long periods pending trial, to the point where they currently account for 71 percent of the country’s total prison population; whereas the conviction rate in trials is less than 50 percent.

The judicial system is also heavily politicized. In recent years, this has meant that the judiciary – like Turkish society in general – has been divided between supporters and opponents of the AKP. In practice, particularly since the AKP was returned to power in a landslide in July 2007, the lower echelons of the system have been dominated by supporters of the government and the higher courts by remnants of Turkey’s former ruling Kemalist elite; and both have abused their powers for political purposes.

Before September 2010, the Kemalists controlled the Constitutional Court, the Yargıtay, Danıştay, and the Supreme Board of Judges and Prosecutors (HSYK), which is responsible for appointments and disciplinary procedures in the judicial system. The AKP was particularly focused on the Constitutional Court, which had the power to outlaw political parties, and the HSYK, which had attempted to remove public prosecutors it suspected of pursuing politically motivated cases against perceived opponents of the government. On September 12, 2010, the AKP succeeded in having a series of constitutional amendments approved in a referendum. (See 30 August 2010 Turkey Analyst) They included proposals to increase the number of members of the Constitutional Court from eleven to seventeen and of the HSYK from seven to twenty-two.

The AKP argued that the changes would strengthen the political independence of both bodies. However, it ensured that the newly created seats in both the Constitutional Court and the HSYK were filled by its own candidates. The result was not to make the two bodies politically independent but merely to change their political composition.

Opponents of the AKP have claimed that its proposed reforms of the Yargıtay and the Danıştay will similarly allow the government to pack both bodies with its own supporters. They maintain that the changes to the Yargıtay will give the AKP total control of the criminal justice system at a time when nearly 500 of its perceived opponents and critics are facing charges of belonging to terrorist organizations, and thousands more are intimidated into silence for fear of meeting a similar fate. They also argue that, in a country where it is already very difficult to secure an operating license or state contract without a connection to a member of the ruling party, packing the Danıştay with AKP sympathizers will ensure that corruption becomes even more widespread and blatant than it is at present. On January 31, 2011, twenty-four bar associations, including the ones in Istanbul and Ankara, issued a joint statement denouncing the reforms as politically motivated. On February 4, 2011, the members of the bar association in Izmir staged a one-day strike in protest at the proposed changes.

The Ministry of Justice has responded by arguing that judicial processes cannot be shortened without the growth of the courts of appeal and that, in their current state, the Yargıtay and the Danıştay are obstacles to the dispensation of justice in Turkey. However, although many of the AKP’s criticisms of the Yargıtay and the Danıştay are indeed justified, the problems in the Turkish judicial system go much deeper than the appeals process. The Yargıtay and the Danıştay are not the only bottlenecks in the system. It often takes many years for the lower courts to deliver a verdict. One of the main reasons is that the individual hearings in cases are usually held weeks or months apart; with the result that the judges, who are responsible for hearing many other cases in the meantime, struggle to retain mastery of all of the evidence. Yet the AKP has demonstrated little enthusiasm for addressing such – arguably more fundamental – flaws in the system, preferring to focus on diluting the presence of Kemalists in the only remaining judicial bodies where they still constitute a majority.

However, it is difficult even to see the logic in the AKP’s proposal to make all decisions of the Yargıtay and the Danıştay eligible for appeal to the Constitutional Court. AKP supporters argue that it is proof that the government is not ideologically motivated. They maintain that, if the AKP’s proposed expansion of the Yargıtay and the Danıştay was to enable it to control the two bodies, then it would not need to insist on their decisions being eligible for appeal to another body which the party controlled, namely the Constitutional Court. The AKP’s critics retort that the government is hedging its bets in case the expansion of the Yargıtay and the Danıştay results in the dilution rather than the complete removal of Kemalist influence. Whatever the case, it is difficult to reconcile making the decisions of the Yargıtay and the Danıştay eligible for appeal to the Constitutional Court with the AKP insistence that its overriding goal is the reduction of the backlog of cases in the appeal courts.

 The current appeal process consists of a single stage, which is handled by a combined total of 345 judges at the Yargıtay and the Danıştay. The AKP insists that this bottleneck is responsible for the length of time it takes to conclude cases. Under its proposed reforms, cases will be eligible for a two stage process, consisting of the 538 judges at the expanded Yargıtay and Danıştay and then the 17 members of the Constitutional Court; namely a bottleneck twenty times narrower than the one the AKP maintains is currently preventing the timely dispensation of justice.

CONCLUSIONS: The confused logic of the AKP’s proposed changes to the appeals process has been exacerbated by the selectivity of its attempts to reform an admittedly deeply flawed judicial system. More worryingly, they come at a time when there are increasing signs that AKP sympathizers in the police and lower echelons of the judicial system are abusing their powers to persecute and intimidate perceived critics and opponents of the government. (See 5 July 2010 and 15 September 2010 Turkey Analyst)

Turkey is in urgent need of a judicial system in which all of its citizens can trust, regardless of their political sympathies. Unfortunately, the AKP’s packing of the HSYK and the Constitutional Court following the constitutional amendments of September 2010 and its latest proposed reforms to appeals processes suggest that hopes that the country will one day have an independent judiciary free of political interference are not growing stronger but receding.

Gareth Jenkins, a Nonresident Senior Fellow with the CACI & SRSP Joint Center, is an Istanbul-based writer and specialist of Turkish Affairs.

© Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center, 2010. This article may be reprinted provided that the following sentence be included: "This article was first published in the Turkey Analyst (www.turkeyanalyst.org), a biweekly publication of the Central Asia-Caucasus Institute & Silk Road Studies Program Joint Center".