Within the scope of our new project we are publishing interviews with prominent European lawyers, judges, academics and executives of associations of lawyers or judges. Our seventh interview is with Ms Tamara Trotman, the president of Judges for Judges (J4J).
Q1: You are the president of Judges for Judges (J4J). Could you tell us about you and J4J and your work?
Rechters voor Rechters (Judges for Judges) is an independent and non-political Dutch foundation.
I have joined the board in 2009 and after a few years became the chair. It is one of my side activities next to being a criminal judge in the Court of Appeal of The Hague and my work for the Dutch Training and study centre for the judiciary (SSR).
Judges for Judges (J4J) was established in 1999 by Bert van Delden, former President of the District Court of The Hague, on the occasion of his stepping down from the office of chairman of the Dutch Association for the Judiciary (NVvR). He considered it a good idea for Dutch judges not only to focus on their own – generally comfortable – position, but to take up the cause of foreign colleagues in need.
Judges for Judges aims to support fellow judges abroad who have run into problems or risk problems on account of their professional practice. These problems are mostly related to (presumed) violation of their professional independence. J4J also concerns itself with judges, who have been discharged for disturbing reasons, have been arrested and imprisoned, put under pressure, are threatened, or even assassinated. We have supported judges all over the world. In the past years we have also monitored several criminal cases against Turkish judges and together with the other associations joined in the Platform for an Independent Judiciary in Turkey we try to keep a spotlight on the plight of our Turkish colleagues.
Q2: You were a defense lawyer and now you serve as a criminal court judge. To what extent do these two professions differ in terms of the application of laws?
Both defense lawyers and judges (and prosecutors for that matter) work with the same set of laws.
I would like to compare the right to a fair trial with a triangle. For a fair trial it then is of the utmost importance that all three necessary points of the triangle each fulfill their respective functions in the best possible way.
Biggest difference between a defense lawyer and a judge is that the first has to be partial whereas the judge should be impartial and independent. What you unfortunately often see in countries with serious Rule of Law issues is that the executive encroaches on the independence of the judiciary and that lawyers are hampered in their work by the authorities by identifying them with their clients or their clients’ causes.
Q3: In one of your interviews you said “It is clear that judges often function as the canaries in the coalmine.” As a judge and the chair of your foundation (J4J), how do you see the situation in Europe (the Europe Union and the Council of Europe) with regard to rule of law and the independence of the judiciary?
There is so much going on at this moment on Rule of law related issues, both within the EU and outside of the EU in the broader assembly of countries of the Council of Europe. The past few years we unfortunately have seen democratic backsliding in certain member states. What you see is that this process of erosion of the Rule of Law is initiated by democratically elected governments and begins with dismantling democratic checks and balances, the judiciary, free media and civil society. Scholar Nancy Bermeo uses this great term ‘executive aggrandizement’ the defining feature being that institutional change is either put to some sort of vote or legally decreed by a freely elected official, meaning that the change can be framed as having resulted from a democratic mandate. Turkey, Hungary and Poland are all examples of countries in which you have seen this happening.
But although you can certainly see similarities between the countries, it is important to also note the differences. The scale of the mass dismissals and arrests of Turkish judges (and prosecutors) after the attempted coup in 2016 is unheard of! The site of Turkey Purge visualized the scope of the post-coup crackdown and it shocks me every time I see those numbers. And it goes on and on, only last month on 14 October 2020 again eight judges and three prosecutors were dismissed without a fair procedure by Turkey’s Council of Judges and Prosecutors (CJP) for alleged membership of or connections with the Gülenist movement.
Unfortunately, judicial harrassment is something that you now find in this type of society. Appointing politically loyal judges to crucial positions in the courts makes judges part of the problem in this kind of authoritarianism. As Human Rights Watch puts it on its Turkey-page: ‘Executive control and political influence over the judiciary in Turkey has led to courts systematically accepting bogus indictments, detaining and convicting individuals and groups the Erdoğan government regards as political opponents, despite lack of evidence of criminal activity. Among these are journalists, opposition politicians, activists and human rights defenders.’
And yes, I think it is fair to say there is a Rule of law crisis in the EU. Who would have thought 10 years ago that proceedings under Article 7 of the Treaty of the European Union would have been triggered against two member states (Poland and Hungary). If we want to see the EU as a community of values, it is essential to find innovative ways to uphold the Union treaty values. The European Court of Justice in Luxembourg has a lot of important Rule of Law cases on its plate. Recently we heard that the European Commission moves forward with the infringement procedure opened in April against Poland regarding the ‘Muzzle law’ that entered into force on 14 February 2020. The Commission considers that this Polish law on the judiciary undermines the independence of Polish judges and is incompatible with the primacy of EU law. That is an important step. But the ECJ can not solve this issue single-handedly. Ultimately it is a political choice on how we want to cooperate together in the EU, what it truly means to be a EU-member state and what that means in terms of rights and obligations. The trilogue these days between the European parliament, the Council of the EU and the European Commission about how best to attach the rule of law conditionality to EU funds is crucial.
Q4: You said “Living in a democracy under the rule of law is never a given, it is always work in progress.” However, the problem is people take the rights and freedoms they enjoy for granted. One of the most essential ones is the right to fair trial which only can be ensured with the independence of judiciary. How can we better explain it to fellow citizens?
Civic education is truly important so start young, citizens should understand that everyone should have the right to bring his/her case in front of an independent judge. Talk about these issues in your family and discuss with friends. The judiciary and individual courts should actively reach out to the media and the public. Organize visits for schoolchildren and students to your court. Try to give reasoned judgments in clear language. These are all ways in which you can help to build public confidence and trust in the judiciary. Obviously in Turkey the Rule of law will first have to be restored and then a lot of effort will be required to build trust in the judiciary. What amazes me is the resilience and tenacity of Turkish human rights defenders, be it imprisoned judges, lawyers, journalists or other activists. Despite everything they do not give up dreaming of and striving for a better society. So the least we can do is show them our solidarity.
Q5: Judges for Judges, for a long time, has been running campaigns on the situation of judges in Turkey and Poland. What would you like to say to our European colleagues as to how they could help their Turkish and Polish colleagues?
Well first of all inform yourself about what is going on in these countries, support free and independent media, then whenever appropriate and necessary make some noise, for example through your judicial association. Most national associations are part of an international body as well. Try to reach out to your colleagues across borders. Let them know they are not alone in their struggle. And donate, for example:
For Poland: you can donate to KOS, the committee behind Free Courts (Wolne Sądy)
For Turkey: you can donate to the fund of the International Association of Judges
Q6: In the cases of Alparslan Altan and Hakan Bas the ECtHR decided that detention of judges without respecting procedural steps laid in the Law on Judges and Prosecutors infringes the principle of judicial independence. However, the Turkish Constitutional Court (TCC) in its recent judgment refused to comply with these decisions. In your opinion, should the ECtHR cease to consider the TCC as an effective remedy?
The threshold to conclude that the highest court in Turkey, the TCC is non-effective is very high and rightly so. But referring to the words of Gianni Buquicchio, president of the Venice Commission on the occasion of the 7th anniversary of the individual application system before the Turkish Constitutional Court: “at one point in time the tipping point will be reached and the application to that highest court will be found to be non-effective”.
The Commissioner for Human Rights of the Council of Europe, Dunja Mijatović analysed the situation clearly in her Turkey report: “The Commissioner thinks that there are currently four interconnected issues casting doubt on the effectiveness of the individual application procedure to the Constitutional Court as a remedy for human rights violations in Turkey. These concern the tardiness of the Constitutional Court in remedying serious human rights violations, the lower courts’ highly problematic attitude vis-à-vis the case-law of the Constitutional Court, the extraordinary burden that this state of affairs put on the Constitutional Court, and finally recent judgments of the Constitutional Court in which it appears to be departing from its previous, Convention-compliant approach.”
When we look at (1) the way the TCC handled the case of judge Yildirim Turan completely disregarding the ECHR decision in the case of judge Hakan Baş  (and the similar case of judge Alparslan Altan) and (2) see the inaction of the TCC regarding the ongoing detention in the case of human rights defender Osman Kavala although the ECHR required the Government of Turkey to take measures to end the detention of human rights defender Osman Kavala and to secure his immediate release, I assume the tipping point is within sight. I am afraid we are lulling ourself to sleep if one still thinks the TCC can be an effective agent of change under the present conditions. Unfortunately both ways paint a bleak picture for the victims of human rights violations as the further flooding of the ECHR with new cases will not offer a short term solution. Therefore ultimately the Turkish political winds will have to blow from another side.
Q7: Judicial integrity and conduct of judges are essential to secure the trust of people towards judiciary. Would you like to comment on the ECtHR President Mr Spano’s decision to accept an honorary doctorate from Istanbul University which sacked some 200 academics under Turkey’s recent emergency rule? It has sparked wide criticism in Turkey and Europe.
Well a lot has been said on this matter already, I don’t feel the need to comment on his decision to accept this honorary doctorate. But I would like to conclude this interview with a quote from the speech Spano gave in September 2019 before the members of the Turkish Constitutional Court: “Those men and women that are privileged to be bestowed with judicial power must exercise this power in a manner that is conducive to upholding the rule of law and democratic principles. That endeavour often necessitates a sober mind and a brave heart, in particular in difficult times when our core principles are being challenged. But that is our role; that is our mission.”
We all can take those words to heart!