Turkish laws and their application have changed dramatically since the 2016 coup attempt and a subsequent two-year state of emergency, which has been partially extended through presidential decrees.
To address systemic issues and lingering inconsistencies in Turkey’s penal codes, members of the ruling Justice and Development Party (AKP) submitted the long-awaited first package of their Judicial Reform Strategy on Sept. 30.
The 39-article proposal aims to strengthen the independence of Turkey’s judiciary while fostering more transparency, efficiency and uniformity in legal procedures. Though human rights advocates and members of Turkey’s opposition parties support the attempt to reform the judicial system, many claim the provisions introduced this week will not achieve the government’s stated goals.
President Recep Tayyip Erdogan launched the reform strategy in May 2019, stating that changes would be made to legislation covering judges, prosecutors, the length of pretrial detentions, counterterror laws and criminal codes.
"The judicial reform document will both increase the trust of our citizens in the system and help to create a more predictable investment climate,” Erdogan said in a speech unveiling the strategy. "With this document, we are putting forward new approaches in terms of reinforcing freedom of expression and carrying it a step further.”
Zuleyha Gulum, a lawyer and Istanbul deputy for the majority-Kurdish Peoples’ Democratic Party (HDP), said she agreed the reforms were introduced to subdue pressure from Turkish investors, who complained of a lack of legal guarantees in the country, which they felt had stymied the domestic business climate and worsened the ongoing recession.
Gulum said the package is also being presented to soothe rocky relations with EU officials and business partners, who have been critical of Turkey’s mass purges and widespread application of anti-terror laws on political dissidents in the post-coup period. Yet she criticized the package for under-delivering on key issues.
“It is not right to call this a reform because the package does not have the changes to meet the current needs,” Gulum told Al-Monitor. “There are no regulations that will eliminate the damage caused by the state of emergency decisions, pave the way for the use of democracy and democratic rights, and ensure the independence and impartiality of the judiciary.”
Officials in Turkey’s Ministry of Justice did not respond to requests for comment.
Freedom of speech advocates said the reform package did not address the ambiguous wording of Turkey’s counterterror law, which has allowed for the prosecution of political opponents and journalists on the grounds that their criticism of state officials could be interpreted as propaganda for terror groups.
Members of the International Press Institute said in a statement that the proposals did not adequately define what constitutes terrorist propaganda. It also did not outline the limits of legal protections afforded to journalistic activities and criticism under freedom of expression, leaving the application of the counterterror laws “open to abuse and arbitrary restriction.”
Andrew Gardner, a senior Turkey researcher for Amnesty International, said the reforms also fail to address prosecution of people charged with insulting the president — which nearly 2,100 people were convicted of in 2017 — and did not restore the right to peaceful assembly in the country.
“The changes to the laws are very cosmetic in this regard,” Gardner told Al-Monitor, noting the government was attempting to safeguard public criticism or the sharing of information through reforms to the counterterror law, “but under the current legal definition [these] shouldn’t be an offense either.”
He added, “The fundamental problem in the counterterrorism prosecutions is the fact that the definition of terrorism is so vague and it defines terrorism in terms of its political aims rather than any violent methods.”
In November 2018, the Ministry of Justice stated that 17% of Turkey’s prison population was incarcerated on terror-related charges.
Another key point of contention is the reform package’s handling of pretrial detention, which has been used as summary punishment for dissidents in post-coup Turkey. Under Article 18 of the provisions, pretrial detention would be limited to 18 months, but could be renewed for six months without explicitly stating a limit on renewals.
“Even if the judicial package is passed, if you’re accused of terrorism-related offenses you could spend two years in prison without even an indictment being prepared and that is absolutely unacceptable,” Gardner told Al-Monitor. “That is the reform that is being suggested.”
Critics say the reform package also does not sufficiently bolster independence in Turkey’s judiciary, which continues to suffer after more than 4,000 judges were dismissed in post-coup purges. Since the end of the state of emergency in 2018, the government has put into law a provision in which the dismissal of judicial members can continue for another three years.
As a result, Gulum said the judges and prosecutors currently working in Turkey’s courtrooms have administered harsher punishments than their predecessors to please government officials and keep their positions.
In an attempt to normalize sentencing and reduce such tendencies, the reform package “subtly tells the judges and the prosecutors, ‘You've exaggerated too much, we didn't tell you to punish [people] for everything,’" Gulum told Al-Monitor.
Included in the package are articles streamlining court proceedings for minor offenses and increasing protections for defendants under 18 years of age. Provisions also standardize exams for judges and prosecutors by the Justice Academy, which was restructured following the mass dismissal of former members over their alleged links to the Fethullah Gulen network, which the Turkish government accuses of orchestrating the 2016 failed coup.
Other articles permit for payments of judicial fines in installments, expand the use of a video conferencing system that allows defendants to appear in court via an interface similar to Skype, and allows victims of sexual assault to issue statements via video recordings in a private room, as opposed to revealing the details of the crime in front of a group of people.
An additional provision in the reform package would allow Turkish lawyers with more than 15 years of work experience to apply for service passports, or green passports. These documents are normally reserved for state employees and facilitate travel to countries where normal Turkish citizens would need visas.
Berk Esen, an assistant professor of international relations at Bilkent University in Ankara, said the passport reform has been met with public enthusiasm by the president of the Union of Turkish Bar Associations, Metin Feyzioglu, and may be an attempt by government officials to gain support from members of the legal community.
“From President Erdogan’s perspective, he will get some support by making bureaucratic concessions like giving the green passports to lawyers,” Esen told Al-Monitor. “It doesn’t cost Erdogan much, and if he can co-opt such a large group of people, it’s a win for his regime.”
The first package of the Judicial Reform Strategy is being assessed by the Justice Commission, which is composed of parliamentary members from the AKP and Turkey’s opposition parties.
If passed, the reforms would be voted on in the General Assembly of parliament before getting final approval from the president. Depending on the amount of debate the reforms generate, the provisions could be adopted into state laws as soon as two to three weeks. A second reform package is expected to be introduced later this fall.