The Kavala verdict of the European Court of Human Rights foreshadows the possibility of severe sanctions against Turkey. Kronos Haber talked to former First President of the Court of Cassation Prof. Dr. Sami Selçuk about the Kavala verdict and other issues on the agenda, we translated some parts of it into English.
Who is Sami Selçuk?
He, is a Turkish jurist, professor of law at the Bilkent University in Ankara. He is also former First President of Court of Cassation of Turkey. He was graduated from Ankara University, Law School in 1959 then he began to work as public prosecutor. On July 7, 1999, he elected the First President of Court of Cassation of Turkey. He retired this job on June 15, 2002. He knows French and Italian languages.
The ECtHR’s Kavala judgement could lead to Turkey’s expulsion from the Council of Europe. What is the justification for Turkey’s resistance to international law?
There is no justification. Because Turkey does not know the law. it simply does not know the law. Why? You have signed the judgements of the European Court of Human Rights, you have said that you will comply with its decisions. You have provided the possibility of application within the country, but you do not comply with this. This is not possible. There is a promise which the state made. a promise confirmed by a signature. Everyone must honour this promise. Apart from that, let me first say, you know that the decisions of the Constitutional Court are not being obeyed. the judgements of the Constitutional Court however must be obeyed. Because the judges of the first court are not authorised to evaluate these judgements. Look, as a judge, you may not agree with the opinion of the Constitutional Court. As a judge, you can criticise this opinion as a jurist. You can write an article, but from the moment you sit on the bench as a judge, if there is a decision of the Constitutional Court that binds you, you have to implement it. Even if it does not agree with your legal opinion. If you read the sentence in Article 153 of the Constitution, even a child on the street knows that it is an imperative. A child with a primary school education knows that it is an imperative.
Does it constitute an order for local courts to act upon?
The Court of Cassation, let alone the judges, including the Council of State, is not authorised to say that it does not comply with the decision of the Constitutional Court. I would like to emphasise this in particular.
I do not give a passing grade to a law student who says, “A judge of the first court or a department of the Court of Cassation may not comply with the decision of the Constitutional Court.” You will comply with it while performing your official duty. There is no room for debate on this issue, but if you find the decision of the Constitutional Court wrong, if you find it contrary to your legal opinion, you write an article. You can criticise it, but you cannot say that you do not abide by it while still in the office. I will not let a judge pass the subject, let alone become a judge. It is as simple as that.
You mean that the legislation is that clear?
Let me give you another example. There are some decisions of the French Court of Cassation on this issue. For example, in 1977, a special law was passed in France on land leases, on how to lease land. The first court judge gave his decision on the implementation of this law. He applied it correctly. In other words, the decision was correct, but what did the judge do? Although he applied the decision correctly, he used a sentence there and criticised the law. The Court of Cassation did not consent to the finalisation of the decision even though it was correct. He said that your duty is to apply the law. Your duty is to act in accordance with the law when making a judgement, when conducting a trial, not to criticise it. You can go and write an article and criticise it. In that article, we can see whether the law is really wrong or right. You can also criticise the decision of the Constitutional Court. We say that maybe the man really thinks right, but you cannot criticise that law while doing your official duty. Because there you are obliged to implement the law.
“THE DUTY OF THE JUDGE IS TO APPLY THE LAW, NOT TO CRITICISE IT”
Your duty is not to criticise the law, but to implement it. What did the French Court of Cassation do even though the decision was correct, it overturned that decision. ‘You exceeded your authority,’ it said. You have made a crippled decision by exceeding your authority. I’m overturning the decision,’ and it did it right. I am giving this example especially so that if anyone listens to us, I hope they will listen, they will have learnt some things. Let us distinguish between two things. I am not saying that all decisions of the Constitutional Court are correct, because law is a subject that is constantly discussed. You may not agree with that judgement. Even a decision in which 11 judges or 15 judges participate may not be unanimous. Unanimity is not always possible. What happens is that 1, 3, 5 of the judges write dissenting votes. Even those who write dissenting opinions have different views. They do not defend the same opinion. These are ordinary situations of law. They are ordinary, experienced situations, but Article 153 of the Constitution clearly instructs us, ‘You will obey the decision’, it is over. You obey the judgement. If you don’t like it, you can go and write an article and say, “This decision of the Constitutional Court or the Court of Cassation is flawed in the following respects, I disagree with it. As a judge, I abide by it”. Ours do not do that. They were evaluating the Constitutional Court’s judgement. You’re kidding! You can’t go from one to two in law school.
… Article 153 of the Constitution clearly instructs us, ‘You will obey the decision’, it is over. You obey the judgement. If you don’t like it, you can go and write an article and say, “This decision of the Constitutional Court or the Court of Cassation is flawed in the following respects, I disagree with it. As a judge, I abide by it”. Ours do not do that. They were evaluating the Constitutional Court’s judgement. You’re kidding! You can’t go from one to two in law school.
Related: Top Turkish judicial body will not punish judges who defy the Constitutional Court judgments
“I AM 85 YEARS OLD AND I FEEL VERY SORRY FOR MY COUNTRY”
Can there be a legal justification for not complying with the ECtHR judgement?
What Turkey is doing is completely unlawful. You have to obey those judgements. It is as simple as that. And the ECtHR takes action when you do not comply. Let me say this, of course this issue has been raised. They will have certain defences, but whether this is politically correct or not will be evaluated. Of course, I do not think that Europe will sacrifice a population of 85 million like Turkey to a few people in power or in the judiciary. Let me say that too. Am I doing something wrong here?
I’m only defending that the decision should be obeyed. I’m saying it’s a scandal, I’m saying it’s a legal scandal, I’m saying it’s a legal disgrace, I’m speaking openly. I am 85 years old and I feel very sorry for my country.
That is why I say that Turkey has got into a position where it is outside of law. In other words, it has been turned into a country outside of the law. This is really extremely sad. Politicians have had an effect on this. A few judges and magistrates have had an effect, but I think it is not right to sacrifice 85 million people for a few people. I hope common sense will prevail. I think that the result I hope for will be realised, but I would like to express my sadness as a lawyer. There is no need to go far.
Turkey is an eastern country in terms of law, a failed country. It is an extremely unsuccessful country, especially in terms of judicial law. Let me emphasise this. Trials that end in a single session all over the world take years in Turkey to be considered. I do not believe that such a country understands the law. When I was working in the provinces, I used to finish the trials of the Criminal Court of First Instance in a single session, it’s that simple. The judge does not change. From judge to judge in Turkey, hearings change, sessions multiply. They pass the responsibility to decide from one another. Such nonsense exists only in Turkey.
“SUCH A COUNTRY WILL NOT BE RESPECTED BY LAWYERS”
“AS A JURIST, I HAVE NO AUTHORITY TO RESIST THE DECISION OF THE ECtHR. END OF!”
The Kavala verdict suggests that a similar judgement may be issued against Demirtaş. Can Turkey say ‘the ECtHR has given a very serious warning, we should go back to the book’?
I hope so. Of course, this is nothing more than a prediction, let’s be honest. I don’t know about that, but I want to say that even if Turkey states that it disagrees with this judgement from a legal point of view, it has to comply with it. Because the law says so. It is over. The decision of the ECHR binds me. As a lawyer, I cannot ignore that judgement. As a lawyer, I have no authority to resist that judgement. Look, I have no authority to resist. These are already stated in the conventions. If you are a law-abiding state, you will say that I have to fulfil the requirements of this decision. In Turkey, they say that we can just pay the money and walk away. As soon as you say this, you are admitting that you do not respect the law. So the more you talk, the more you sink. The more you talk, the more you sink. You get exposed.. You say that you are detached from legal mentality and you are giving yourself away. Stop all this.
“OUR CONVICTIONS AT THE ECtHR COMPETE WITH RUSSIA”
No one should try to play the hero before the ECHR. It is as simple as that. The law does not expect or demand heroism from anyone. The laws are obeyed. Complying with the law actually shows that there is a legal consciousness. If you do not comply, you are admitting that you lack this consciousness. You confess to it with your actions and words. Now it often comes up that there are more convictions in Russia than in our country. Russia’s population is twice ours. Take a look. Are Turkey’s convictions half as many as Russia’s? Turkey is almost competing with Russia, when you read the numbers. You realise that when you approach it from a legal point of view, Turkey is in the first place. This is shameful. There are countries in the Nordic countries where there are no convictions. Instead of taking them as examples, we are consoling ourselves. Russia is in the first place. No, Turkey ranks first. Secondly, the country you are comparing is not exactly the right country toi do so. What would be the right country? Show me countries that have never been convicted. Let us be like them. Why can they be like that and you can’t? It means that the idea of law, the concept of law has not been formed in Turkey. I think politicians in particular need that very much.
“I WOULD GIVE JUDGES POOR GRADES AND EVEN PREVENT THEIR PROMOTION”
Now, what I see with the influence of politicians is that jurists have also joined this bandwagon. Some courts are saying that they will not obey the Constitutional Court, they will not obey the ECHR. There is no such nonsense. Look, if I were in office right now, I am speaking frankly, when such judgements come before me, I would not give any of those judges a grade other than poor. I would give them poor grades so that I could prevent their promotion. Because I have never let any student of mine who gave me this answer pass. Let alone being a judge, I would not let them pass in law school. He said he might not comply with the Constitutional Court’s decision. Are you kidding me? What kind of rubbish is that? If your primary school teacher didn’t teach you the imperatives, go and learn it yourself!.
A trial cannot be transferred. A trial cannot be transferred from judge to judge. This is not done anywhere in the world. Judge A starts and finishes the trial. He cannot transfer it to judge B. In Turkey, conscientious conscience is endorsed. There is no such nonsense. There is no example of this in the world. There is only in Turkey.
“JUDGEMENTS RENDERED AFTER A CHANGE OF JUDGE ARE INVALID.”
What is your general opinion about the 15 July trials? Has Turkey gone through or is Turkey going through a healthy judgement process on the sixth anniversary?
That needs to be analysed. I am only saying that the change of judges is frequent in Turkey. There is no such situation anywhere in the world. It is extremely problematic. Decisions rendered due to this kind of change of judges are more or less invalid in all parts of the world. I have always said this when I was in office and I continue to say it now. I try to explain this very well to my students so that they do not make the same mistake. Decisions are made in a single session all over the world. Including the judgements of the high criminal court. I have also participated in trials abroad. I know these closely. I participated in the appeal trial. I attended the deliberations at the French Court of Cassation. I have participated in the trials of the assize courts. I have participated in the criminal court of first instance. In all parts of the world, a decision is made in a single session. If there is a possibility of a change of judge, in order to prevent a hearing from A to Z all over again. Because an opinion starts to form. There is a substitute judge. The substitute judge comes and sits. If the judge dies or falls ill, he takes his place. If he/she does not die or fall ill, that judge will finish the case, but the substitute judge will also hear the case. Repetition of the hearing is prevented. Look, I am speaking very clearly, these rules are not applied in Turkey. They were not applied in the past and they are not applied today. I have to say it clearly.
Relevant Input: In Turkey Judges and Prosecutors are Often Reassigned as a Result of Their Decisions.
If the law can be trusted, the finger it may sever will not hurt…
Trust in law is very important. If the law is not trusted in a country, it is necessary to review it from A to Z. I find it very strange that no one pays attention to this. Especially, of course, this issue concerns politicians the most. They should review their own actions to see what they have done. I do not think that almost most of the politicians have an awareness of the independence of the judiciary. Turkish politicians do not have this awareness. There are those who have. I don’t want to go to those exceptions. I have experienced them in the past, but when I look at the situation today, I see that such a consciousness has not been formed. Let me give you an example. In 2000, President Chirac was making a speech on television. He said that the Council of Judges and Prosecutors is under my authority. What is the President saying, the Council of Judges and Prosecutors should not depend on me as a politician. He says this disturbs me. What is this? He says that he has a good understanding of the independence of the judiciary and he is disturbed by this.
Isn’t it the opposite in Turkey?
Yes, we do it the other way round. Isn’t the politician always saying give me all the powers? Give me the authority. They compete with each other. Let’s elect my candidate, let’s elect your candidate. Can such nonsense be possible? None of those who do this have any knowledge of judicial independence. They have words, but they say them for swagger. There is no consciousness.
Relevant Input: AKP’s longstanding court packing strategy:
The AKP and its chairperson President Erdoğan have never ignored the importance of controlling the judiciary to remain in power. To this end, they carried out so-called constitutional reforms in 2010 and 2017 to change the structure and judges of the Constitutional Court. The court currently consists of 15 judges, 12 of whom are either selected or appointed by the president, while three are elected by parliament. As Erdoğan’s AKP has been controlling the parliament since 2002 and holding the presidency of the republic since 2007, 12 of the incumbent judges were appointed either by former president Abdullah Gül (5/15) or by the incumbent president, Erdoğan (7/15) — both founders of the AKP — while the remaining three were elected by a parliament controlled by the AKP. – [OPINION] Not the top court but Erdoğan will seal the fate of the pro-Kurdish HDP
Let me give an example from France again. Most of the Council of Judges and Prosecutors goes before the Presidents and is approved. Chirac failed to do this and Sarkozy succeeded, and it ended in 2008. Literally, the judges are now deciding for themselves. They decide who to elect. Both then and now, especially then, the Council of Judges and Prosecutors sits. It says that two seats in the Court of Cassation have become vacant, or that someone has retired or died… New members will be elected to replace them. In the French Court of Cassation, the number of members and presidents never changes, it is 96. Now, when you read the law, the Council of Judges and Prosecutors nominates candidates three times the number of seats vacated . If two seats are vacated, it will nominate six names. It will send them to the President. And he will choose one of them. The Council of Judges and Prosecutors has never nominated three times. Only two times. As a politician, the President is only left to approve, to say OK. So the president tells you that he didn’t find many. It’s over. For the members of the Court of Cassation, he says that “he has searched all over France and found these two worthy of office”. He doesn’t say that he expects to receive six candidates. No President has ever said that. Look, I repeat, because they all have a full awareness of the independence of the judiciary. We do not have this consciousness in politicians. The politician is trying to get his own man elected. We have seen what has been done recently.
We can see this when you look at the structure of the Constitutional Court…
It’s horrible, it’s appalling. There should be an uproar. There’s not enough public opinion. There isn’t. The politicians are trying to do what politics demands. They will say “send someone close to me”. That perception does not exist in Turkey.
France, which you often use as an example, has a semi-presidential system. In our case, we have a Presidential Government System that is unique to us. You have criticised this text, saying, “No matter who is elected, it forces the elected person into dictatorship.”…
Because you have an authority that exceeds even the Parliament. You are in a position to do whatever you want. Therefore, if you have a sense of democracy, it may prevent you from time to time. Otherwise, what will you do? You will use the authority you want. You will disturb the society because of some authorisations. I mean, you have been given such powers that it is inconceivable. You are using the authority of a sultan. You are an elected person. You are using the authority of a sultan. Such a thing would not be witnessed in any democracy. This is wrong. This must be abandoned. The voting is also wrong. That voting is invalid. I mean, you can’t say that that voting is legitimate, you can’t make anyone say so. You can’t make me say it at all.
Categories: Interviews, Turkey Human Rights Blog