Report on judicial independence and impartiality in the Council of Europe member states in 2017 has just been published. The report has been prepared by the Bureau of the CCJE (Consultative Council of European Judges of the Council of Europe) following the proposal of Secretary General Jagland.
Here is the part of report with regards to Turkish judiciary:
“88. The CCJE Bureau adopted, on 20 July 2016, a statement following the attempted “coup d’état” in Turkey mentioning that it had received several reports that a large number of judges in Turkey had been dismissed, and that some had even been detained without any procedure prior to such decisions. The Bureau of the CCJE reiterated that irremovability of judges was an essential element of judicial independence and urged the Turkish authorities to limit suspensions of members of the judiciary to those against whom a concrete suspicion existed of involvement in the attempted “coup d’état”, to guarantee respect for the principles of due process for such judges, and as regards other judges, to respect their independence and irrevocability.
89. The plenary meeting of the CCJE also adopted, on 10 November 2016, a statement concerning the judiciary in Turkey mentioning that, during the plenary meeting, the European Association of Judges (EAJ) and the Association of European Administrative Judges (AEAJ) submitted a request to the CCJE, which had also previously been communicated to delegations and distributed more widely, for measures to be taken in view of the critical situation affecting the independence of the judiciary in Turkey. The CCJE, recalling its Bureau’s statement of 20 July 2016, listened carefully to the information provided by the Turkish delegation in the course of the plenary meeting, and, after consideration of the issue and discussion in the plenary, took note of the concerns and the request of the EAJ and the AEAJ that action be taken, and, in spite of the information provided by the Turkish delegation, fully shared the concerns expressed by its members and observers. The CCJE welcomed the attempts of the Parliamentary Assembly (PACE) of the CoE and of the Venice Commission to obtain further reliable information about the situation of the rule of law in Turkey and declared that the CCJE was available to support any useful action.
90. In addition, the CCJE Bureau wishes to express its concerns as regards the additional information below reported by the CCJE observers – EAJ and AEAJ – as well as by the Venice Commission and the PACE.
91. The EAJ reports in 2017 that, to summarise the basic facts since 15 July 2016 and after the state of emergency then established in Turkey, more than 4000 judges and prosecutors, a quarter of the total, have been dismissed. The vast majority are held in overcrowded prisons and some of them are even held in solitary confinement. Only a fraction has heard formal charges so far mostly for vague and abstract reasons.
According to the EAJ, several basic fundamental rights guaranteed under Articles 5 and 6 of the ECHR are being clearly ignored.
92. The EAJ further reports that the platform, created by four European judges organisations – AEAJ, EAJ, Judges for Judges and MEDEL – to assist the Turkish judiciary, has urged very recently the Turkish authorities to make possible the observation of the court hearings by international observers, to guarantee that the European Prison Rules are respected in all detention centres and, finally, to release the unduly detained judges and prosecutors and to return the unduly seized assets to these persons. Also the CoE and the EU were requested to convince the Turkish authorities to fulfil the requirements based on common and basic European values and, in any case, to establish mechanisms and support initiatives which make international observations of trials possible.
93. The AEAJ has drawn specific attention to the ongoing situation of the judiciary in Turkey and alleged that mass dismissals (more than 4000 judges and prosecutors) and mass arrests (approximately 2450 judges and prosecutors) have been made. The AEAJ states that dismissal decisions are neither based on a fair trial, nor issued in an individualised way and lack basic requirements of a judicial decision. The AEAJ continues that the arrest decisions against judges and prosecutors lack fundamental rights granted under Articles 5 and 6 of the ECHR and the emergency legislation is excessive.
94. The Venice Commission, also cited by the AEAJ, concluded that “the decision-making process which led to the dismissals of public servants was deficient in the sense that the dismissals were not based on individualised reasoning, which made any meaningful ex post judicial review of such decisions virtually impossible”. “Collective dismissals “by lists” attached to the decree laws (and similar measures) appear to have arbitrarily deprived thousands of people of judicial review of their dismissals. The Venice Commission is particularly concerned by the apparent absence of access to justice for those public servants who have been dismissed directly by the decree laws“.
95. The AEAJ indicates that the practice of enforced transfers of judges to other (remote) courts and sudden removal from certain cases is still in place. The AEAJ also refers to the case of Mustafa Karadag, chairman of the Union of Judges, who was transferred to a remote court. The transfer was not on a voluntary basis and done without giving any substantial reasons.
96. The AEAJ mentions that the mass dismissals and arrests without proper individualised accusations have “a chilling effect” within the judiciary. This means that those judges, who are still in office, fear being subjected to such arbitrary measures themselves. These judges can no longer be seen to be independent, as the pressure is too high on them.
97. Most recently, PACE, at its autumn session of 2017, “reiterates its deepest concern about the scope of measures taken under the state of emergency” and calls on the Turkish authorities “to put an immediate end to the collective dismissal of judges and prosecutors, as well as other civil servants, through decree laws and ensure that those who have already been dismissed will have their cases reviewed by a “tribunal” fulfilling the requirements of Article 6 of the ECHR”.
98. Judges and prosecutors in Turkey who were dismissed following the failed coup attempt in 2016 are able to seek redress before the Turkish Council of State. The European Court of Human Rights, while stressing that this conclusion did not prejudice a possible re-examination of the question of the effectiveness of the remedy in question and the ability of the national courts to establish consistent case law compatible with Convention requirements, has since found that the remedy before the Council of State is a priori accessible and that there was no evidence to suggest that it was not capable of providing appropriate redress.”