Turkish Judicial Reform and Freedom of Expression: Don’t we already have that?

On 30 September 2019, the MPs of the ruling Justice and Development Party (AKP) submitted the first part of the proposed amendments laid down in the Judicial Reform Strategy Document to the Turkish Parliament. The new Turkish judiciary reform package, unveiled by the President Erdogan on 30 May 2019, aims to strengthen the independent, transparent, objective and accountable features of the judiciary. Despite being called “new”, the Judicial Reform Strategy was originally presented in 2009 within the framework of accession negotiations with the European Union (EU) and was subsequently updated in 2015. Two strategy documents have been adopted since. However, Turkey’s need for judiciary reform emerges from shortcomings that hinder the coherent functioning of the legal system, as well social demands beyond the political objectives of the EU accession process. The third Strategy Document touches important subjects, such as strengthening the rule of law; more effective protection and development of rights and freedoms; increasing the transparency of the system; simplifying the judicial processes; facilitating access to justice; and strengthening the right to defence and the right to a fair trial.

A recent example of the malfunctioning of the judiciary system can be seen in the criminal cases filed against the academics who signed a declaration entitled, “We will not be a party to this crime” in January 2016. This declaration was published on behalf of the Academics for Peace Initiative. At the end of 2016, more than 2,200 academics had signed the declaration. In 2017, criminal cases were filed against the signatories on the grounds of “terror propaganda”, as per Article 7/2 of the Turkish Anti-Terror Law No.3713. As a consequence, of the 640 academics who stood trial, 204 academics were sentenced to prison upon the conclusion of their cases; 549 academics had their passports restricted and 406 were dismissed from their jobs. Recently, 329 academics who were charged with terror propaganda have been acquitted by local courts, following the July 2019 decision by the Constitutional Court that their freedom of expression had been violated.

The Turkish Republic has been party to the European Convention on Human Rights (ECHR) since 1950, which is long enough. According to Article 10, entitled Freedom of Expression- “Everyone has the right to freedom of expression. This right shall include to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Freedom of expression constitutes one of the founding principles of a democratic society, one of the basic conditions for its progress and for the development of all its citizens.  It is a fundamental right which has been interpreted and developed in context by the case law of European Court of Human Rights for a long time. Therefore, it also covers political expression, including political protests and peaceful demonstrations. It protects popular and unpopular expressions, even shocking for some, subject to certain limitations. It is a fundamental right for all human beings, and especially for academics, whose main mission on Earth (or in space) is to search for the truth, to construct their opinions around it, and to share it with public and with their students without any external influence or interference other than science itself. If academics cannot say what they think, believe or know then who can?

According to Article 90 of the Turkish Constitution, international agreements duly put into effect have the force of law. No appeal to the Constitutional Court can be made with regard to these agreements on the grounds that they are unconstitutional. In the case of a conflict between international agreements concerning fundamental rights and freedoms due to different provisions on the same matter, the provisions of international agreements shall prevail. This sentence was added to the Constitution in 2004, just before the EU Council announced on 3 October 2005 that Turkey had fulfilled the political criteria and that accession negotiations could start with Turkey. In other words, the international agreements concerning fundamental rights and freedoms have already been at the top of Turkish legal norms, but judges usually abstain from applying the relevant provisions of these agreements to the conflicts before them, at the expense of violating the Constitution itself.

It is a common belief in Turkish society that judicial reform is necessary for the efficient and coherent functioning of the legal system, along with a highly-demanded reform of the educational system. However, with this in mind, at least in terms of the protection of fundamental freedoms and human rights with special emphasis on the freedom of expression, the courts already have the possibility and indeed a constitutional obligation to apply the ECHR standard. What seems to be required are not endless cosmetic judiciary reforms, but a clear shift in mentality to prioritize the guarantee and the protection of the rights and freedoms of citizens against the ever-mighty State, and not the other way round.

Feyza Basar is Assistant Professor of law at the Istanbul Gedik University, specialized in EU law, sports law, human rights and child’s rights, and director of the EU Research Centre of the same university. In 2004-2005, she studied for her LL.M degree in European Law category at King’s College London with the support of the Jean Monnet Scholarship Programme of the European Commission. Basar is president of Avrupa Forumu Dernegi which she established in 2009 to support EU-Turkey relations. Since 2017, she works for Act.NOW based in Vienna, where she acts as an advisor to mayors of the most refugee-hosting cities in the world and as a member of the gender equality working group, and she develops projects for the protection of refugee children and young people.