Two weeks ago, board member of dissolved YARSAV and former Judge Murat DURMAZ from his personal social media account shared the news that the application made by Turkey’s Union of Judges (The Union in Turkish) to MEDEL with the request of observer and membership was rejected at the meeting held in Prague on 22 June 2019.[1] The rejection letter briefly includes as follows:
- YARSAV, which still is a member of MEDEL, did not consented to The Union’s request and therefore, no new member can be accepted without YARSAV’s represantatives’s consent,
- The Union, has not shown sufficient and active effort to defense for the expelled and detained colleagues’ rights,
- Due to the difficulty for obtaining reliable information from inside the judiciary, MEDEL has not been able to check whether the thouands of new pro-government judges and prosecutors, who have been appointed during the post-15 July period, have infiltrated in the Union,
- Having regard to that undesirable possibility, granting such a union even observatory status would not be consistent with MEDEL’s strive and fight for the dismissed Turkish colleagues,
- No other union or association from Turkey should be accepted by MEDEL as a member until the circumstances in Turkey returns to normalcy and all expelled judges and prosecutors are reinstated,
Resorting above-mentioned grounds, MEDEL denied the Union’s membership communication.[2]
On this occasion, I wanted to share my notes and thoughts over the Union of Judges (the Union), the second association established by the members of the Turkish judiciary.
Established on 16.11.2012, the Union, whose current president is Judge Ayse Sarisu Pehlivan and the Secretary General is Ibrahim Fikri Talman, has taken a political or at least cyclical stand rather than prioritizing the legal principles, particularly since the July 15 coup attempt, which is a vital cornerstone for the Turkish judiciary.
The Union did not react when 2845 judges and prosecutors, accused of “attempting to overthrowing the government ” during the night even when the coupers had not been identified yet, were unconstitutionally and unlawfully taken from their home or office and exposed in front of the media and public. Furthermore, the Union closed its ears and eyes to the voices of colleauges’ detained, died in prison, or got deadly sick because of the prison conditions. The worse is that the Union, like the Turkish Bar Association, with some individual exception, the Union did not respond to the mass and systematic violations like unlawful and extensive detention, torture, or ill-treatment, against which all the international community spoke out. I have not been able to find any comment from the Union even on the question of the removal or detention of its own members.
While some judicial associations and many judges in Europa faced prosecutions for the reason of organising events and campaigns in order to help Turkish judges and their families as a means of solidarity, the Union, aside from solidarity, did not make any effort regarding their removed colleagues’s rights to work in private sector.
International responses to the Turkish State such as those coming from the several branches of the European Union, the Council of Europa, and international judicial organisations, and even the last decision of the ECoHR in Alparslan Altan case could not change the Union’s stand. Whereas the cases brought by the dismissed judges before the Council of State have been pending for almost three years and the complaints have been rejected by the Constitutional Court wit no Legal ground, the Union has only spoken out against unlawful transfer of some members of the Union.
In addition, it was claimed that some members of the Union who have attented the meetings with foreign delegations visiting Turkey to observe the trials of the judges and prosecutors, talked against their tried colleagues and accused them by using the government’s arguments and tools, which includes no individual, lawful, concrete evidence but hearsay. This type of manner reminds everybody of Mr. Metin Feyzioglu, who publicly and behind doors acting as an attorney of the Turkish Government.
While I do not know the Union’s purpose of its application before MEDEL was to maintain YARSAV’s role within the judiciary, or to obtain the seat that they assumed YARSAV vacated, I hope MEDEL’s denial to be a good chance for all of us including the Union to understand the message.
It is obviously their decision if they would like to continue as a small union affiliated with politics and aiming only to defend their members’ rights at the political level. However, if they would like to receive respect from both inside and outside the country as a real judicial union, they should defend and oppose, at least as much as the european organisations do, for the fundamental principals such as rule of law, constitutional democracy, seperation of powers, judicial independence, secure of judgeship, and right to fair trial, and should make clear their stance in terms of the problems that the Turkish judiciary and its members have been struggling with.
No need to say that the problems within the judiciary in Turkey did not start with the July 15 coup attempt, nor would they end completely in the future. But expecting respect and esteem without doing anything for almost 5000 colleagues, who have been subjected to massive violation of the basic rights, is not just a vain wish, but also showing disrespect for the sincere efforts of the colleagues and organisations particularly in Europa.
In a country governed by the rule of law, nobody is above the law including the members of the judiciary and state executives, and therefore anybody who commits a crime should be tried by independent courts. It is also, however, not an option for anyone to disregard the procedural rights determined by the constitution and the statutes. During the dark and hard times, members of the judiciary are the ones who have to protect and advocate the rule of law at most since they act on behalf of the people and get their power from the people.
On behalf of the Freejudges Initiative and of myself, I strongly support the idea that Turkey should immediately return to the parliamentary democracy based on constitutional plurality, and also the idea that the judiciary should be administrated by the representatives of the members of the judiciary itself under the same principles. It is also undoubtedly necessary that the judiciary should not be dominated by any group including the ruling executive power. As my final word, I would like to point out that we are ready for sincere contrubitions so as to catch the westernal, secular, and universal judicial standards.
Kutlan Menderes Elmas
[1] https://twitter.com/muratdurmaz101
[2] The full text of MEDEL’s decision see: https://twitter.com/muratdurmaz101
