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Preliminary observations by the Special Rapporteur on the Independence of Judges and Lawyers: Visit to Turkey (10-14 October)

Ankara, 14 October 2011

I visited Turkey from 10 to 14 October 2011, in my capacity as United Nations Special Rapporteur on the Independence of Judges and Lawyers. My visit was undertaken at the invitation of the Government and included Ankara, Istanbul and Diyarbakir.

The main purpose of my visit was to assess a series of judicial reforms recently undertaken by the Government that include many aspects at the core of my mandate. I also had the opportunity to examine other issues, such as access to justice, the availability and effectiveness of legal defence and the legal profession, as well as fair trial guarantees.

During the visit I met a wide variety of actors including: officials from the Ministry of Justice and the Ministry of Foreign Affairs; the President, the Secretary-General and other judges of the Court of Cassation; the Secretary-General of the Council of State; the President of two Chambers of the High Council of Judges and Prosecutors as well as its Secretary-General and other members; the Secretary-General and two Rapporteurs of the Constitutional Court; the Presidents of the High Military Court of Cassation and of the High Military Administrative Court; the Deputy Chief Prosecutors of Ankara, Istanbul and Diyarbakir; the Presidents of the Human Rights Inquiry and Justice Committees of the Turkish Grand National Assembly; the Istanbul Human Rights Board; the Human Rights Presidency and the Vice-President of the Turkish Justice Academy; the General Command of the Gendarmerie and the Turkish National Police Human Rights Office. I also consulted a wide variety of other stakeholders including representatives of judges and lawyers, Bar associations, academics, international and local non-governmental organizations and the United Nations Country Team. My visit was facilitated by the Office of the United Nations Resident Coordinator and the United Nations Development Programme Office in Turkey (UNDP). I would like to use this opportunity to express my gratitude to them for the support provided before and during my mission.

I am very grateful to the Government of Turkey for having offered me the opportunity to examine the issues relevant to my mandate with full respect for my independence and for having facilitated a smooth development of my visit. I would suggest though that in the future this kind of missions take place for a longer period than only 5 days, as I believe this is really too short a time to conduct an official mission in a vast country like Turkey.

Turkey has undertaken in the recent past a series of reforms aimed at consolidating the rule of law and strengthening the respect for human rights and fundamental freedoms. A growing consensus is also emerging for a more thorough constitutional change. Protection and promotion of human rights have been put high on the agenda. An example of this is the widely stated “zero tolerance” policy against torture, which was recently reinforced by the welcome ratification of the OPCAT on 27 September. In this context, I hope that a further demonstration of the fact that the Turkish Government takes its international obligations seriously will be adequate follow-up given to the findings and recommendations of my report, which I will present to the Human Rights Council in June 2012.

Let me now share with you some of my preliminary observations. I should underline that these observations are not exhaustive and that I will formulate final and more detailed conclusions and recommendations, as well as address other points of relevance for my mandate, in my final report.

The independence of the Judiciary
The 2009 Judicial Reform Strategy and the Constitutional amendments adopted in 2010 have represented, as a whole, positive steps to strengthen the structural independence of the judiciary. Nonetheless, challenges remain in some areas to guarantee, in practice, the effective independence and impartiality of judges, prosecutors and lawyers. In addition, the implementation of these reforms should be accelerated.

With respect to the Constitutional amendments related to the High Council of Judges and Prosecutors, which is the body overseeing the career of judges and prosecutors in the country, the increase in the number of the Council’s members (from 7 to 22) contributes in my opinion to make the composition of this body more representative, as it now comprises a broader range of judicial as well as non-judicial actors, and not only members of the Higher Courts as was the case before.

While the authority of the Minister of Justice over the Council has been reduced following the Constitutional amendments, the Minister of Justice remains President of the High Council and the investigative authority of the High Council is still subject to his approval. The Undersecretary of the Justice Minister is also an ex-officio member of the Council. I believe that it would be necessary to go one step further in this respect to ensure that the High Council be totally independent from the Executive - structurally, functionally and in practice. I also observed the very high number of judges and prosecutors currently seconded to perform administrative or management tasks at the Ministry of Justice. Likewise, it is further to be noted that a good part of the current members of the Council have had tasks within the Ministry of Justice in the recent past.

Let me stress that it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary so as to avoid any kind of political, institutional or social control or influence which could affect their capacity to decide on matters independently and impartially, on the basis of facts and in accordance with the law.

Following the reform, decisions taken by the High Council to dismiss judges and prosecutors may be subject to judicial review. However, other decisions taken by the High Council concerning judges and prosecutors - e.g. suspension, appointment, transfer as well as disciplinary actions - can only be appealed internally before one of the High Council’s Chambers or its’ plenary. This is of particular relevance as one of the main concerns I have heard relates to the way in which judges and prosecutors are transferred from location or duties. In this respect, there is also a need to rationalize the way in which judges and prosecutors are moved through a sort of rotation system, possibly taking into account the specialization they have acquired during their career when they are assigned to other posts. I was also informed of instances where judges and prosecutors were replaced while investigating or deciding upon cases, including high-profile ones. These are certainly areas where improvement is needed in order to strengthen the independence and impartiality of the judiciary.

I also observed that judges and prosecutors in Turkey have exactly the same judicial career, from the time of entry into service until retirement, with the possibility of switching between one function to another. They also often share the same offices and buildings in the courthouse and live in the same compounds. There are debates concerning the proximity of judges and prosecutors, as a matter of concern vis-à-vis the principles of impartiality and equality of arms.

Women are increasingly entering into the judicial career, though I have not seen many appointed at higher levels, which is an element to be addressed.

Access to justice
Almost unanimously judges and prosecutors have called my attention to the issue of workload and a backlog of cases, which is of course among the main causes of delays in the proceedings. This structural problem also affects the citizens’ effective access to justice, as justice delayed is justice denied. One recent change that was supposed to contribute to solve this longstanding problem was the creation of District and Regional Courts of Appeal as an intermediate tier in the structure of courts.

This would also imply a modification needed to ensure that the Supreme Court does not become a third instance court but rather receives fewer cases to review.

The legal framework for the creation of the Courts of Appeal was already established in 2005 but, as of today - although the High Council has appointed Chief Prosecutors for these Courts in 2011 - none of them is currently operational, especially due to a lack of adequate infrastructure. This is an issue that should be swiftly addressed.

Procedural guarantees in anti-terrorism legislation
The investigation, prosecution and trial of cases related to terrorism and organized crime is within the competence of the so-called Heavy Penal Special Court or Heavy Penal Court with “special authority”. The special authority essentially comes from a series of possible restrictions to procedural safeguards allowed by the legislation in these cases. I am particularly concerned at the lack of respect for fundamental procedural guarantees in these cases, and notably at the restrictions to the right to defence. Under the current framework of anti-terrorism legislation, for instance, a suspect’s right to contact a lawyer may be restricted for the first twenty-four hours of his/her deprivation of liberty, which moreover represents an implicit and inappropriate identification of the lawyers with their clients. While statements cannot be taken from the suspect during this period, I believe that this provision may nevertheless potentially open the door to abuses. Furthermore, there is also a limitation of the number of lawyers that can assist an individual charged under the anti-terrorism legislation and access to documents pertaining to the case can be equally restricted.

In addition, the custody period can be extended in cases under the competence of the Heavy Penal Special Courts to ninety-six hours vis-à-vis the twenty-four hours allowed in regular cases; the pre-trial detention period may also be extended. The common use of secret witnesses for the investigation and prosecution of notably organized crime activities is also problematic.

I believe that the above is certainly another area where further improvement is needed. In this context, I would also like to underline that the 1985 UN Basic Principles on the Independence of the Judiciary provide inter alia that the principle of the independence of the judiciary entitles and requires the judiciary to ensure that the rights of the parties are respected in judicial proceedings.

Another concern that I heard quite regularly is that, in the daily performance of their duties, lawyers are not treated at the same level as judges and prosecutors. One symbolic example in this regard is the fact that in the courtroom both judges and prosecutors sit on a podium during the hearings, while lawyers sit at a lower level, close to the defendants and the public. Lawyers need to be treated as equal counterparts of judges and prosecutors within the legal professions.

Another example of the difficulties that lawyers face to properly carry out their work are the obstacles posed to the effective performance of their professional functions by the restrictions mentioned above, such as limitations to access case-files, non-disclosure of evidence, delays in the contact with their clients, and undue identification of the lawyer with his/her clients or the clients' causes as a result of discharging their functions. All the above is not in line with international standards, including the 1990 UN Basic Principles on the Role of Lawyers.

Concerning access to the legal profession and admission to the Bar, there is no requirement to pass an examination after completing studies in a Law Faculty. I have heard from the Bar Associations that I have met during the mission that it would be indeed desirable to establish an examination in order to be admitted to the Bar, which I support.

Capacity building
I wish to conclude by stressing the importance of legal human rights education for all those who participate in the judicial process, a subject very dear to me and the focus of my first thematic report to the Human Rights Council in June 2010.

The establishment of the Turkey Justice Academy in 2003 has been a welcome development. I would like to acknowledge its importance and the efforts the Academy is making to enhance professionalism within the judiciary. The goals of training and capacity-building should also be to strengthen the impartiality of the judiciary so that judges and prosecutors can better serve both the institutions and the society as a whole. In this respect, cooperation with other institutions, including academia and bar associations should be strengthened. The capacity-building should be shaped as to continuously train judges and prosecutors in human rights issues, juvenile justice as well as gender issues, notably when women are victims of crimes.