Geneva, June 21, 2024 – In a strongly worded communication, the United Nations Special Rapporteur on the independence of judges and lawyers, Margaret Satterthwaite, expressed deep concern over the deteriorating state of judicial independence and human rights in Türkiye. The letter, addressed to the Turkish government, highlights systemic issues, particularly around due process violations in terrorism-related cases, as well as the significant political interference that has compromised the judiciary’s impartiality since the attempted coup of 2016.
Widespread Judicial Dismissals and Their Impact
Following the July 15, 2016, coup attempt, the Turkish government undertook a massive purge of its judiciary, resulting in the dismissal of over 4,360 judges and prosecutors, including high-ranking members of the Court of Cassation, the Council of State, and the Constitutional Court. According to the Special Rapporteur, criminal investigations were opened against these legal professionals, with over 1,300 taken into custody and 2,431 arrested due to alleged ties to the Hizmet/Gülen Movement. These actions, based largely on vague accusations and insufficient evidence, have significantly weakened the judiciary’s independence.
The European Court of Human Rights (ECtHR) has criticized these mass arrests, emphasizing that many of the detentions were not based on concrete evidence. In several rulings, including in Turan and others v. Turkey, the ECtHR pointed out that the detentions were carried out on a large scale without adequate legal justification, marking a significant breach of judicial independence. The Turkish judiciary, already reeling from these purges, has since been reshaped with over 9,900 judges and prosecutors recruited post-2016. However, concerns have been raised over the independence of these new appointees, many of whom were recruited in haste, raising fears of political loyalty over impartiality.
Anti-Terrorism Laws: A Tool for Suppressing Judicial Independence
One of the key points raised by the Special Rapporteur relates to Türkiye’s anti-terrorism legal framework, which has been used to justify the dismissal of judges and prosecutors. Law No. 7145 grants the government the authority to dismiss any public official, including judges and prosecutors, based on mere assessments of their alleged connections to terrorist organizations, rather than on concrete evidence. The law’s broad and vague language has enabled the Turkish government to exert control over the judiciary, undermining its independence and leaving it vulnerable to political interference.
The National Security Council (MGK), a security-focused body in Türkiye, plays a significant role in these decisions. The MGK can determine that individuals pose a threat to national security, leading to their dismissal without the possibility of judicial review. This concentration of power in the hands of the executive has created an environment of fear among judges, many of whom are reportedly practicing self-censorship to avoid becoming targets of government action.
Lawyers and Human Rights Defenders Under Siege
The repression has not been limited to judges and prosecutors. Lawyers and human rights defenders have also been subject to widespread harassment, arrests, and imprisonment. Between 2016 and 2022, more than 1,600 lawyers were prosecuted, with 615 placed in pretrial detention. A total of 474 lawyers have been sentenced to a staggering 2,966 years of imprisonment, often on charges of “membership in a terrorist organization.” However, as the Special Rapporteur points out, these charges frequently target lawyers simply for carrying out their professional duties, such as defending their clients.
A further blow to the legal profession came in the form of the 2020 Law on lawyers (No. 7249), which introduced provisions allowing for the creation of multiple bar associations in large cities. Critics have argued that this law has politicized the legal profession, weakening the unified voice of lawyers who defend human rights and often challenge the executive branch’s overreach.
In a notable case, 25 lawyers from various regions, including Diyarbakır, Mardin, and Urfa, were detained in April 2023 during a coordinated police operation targeting Kurdish media and political opposition figures. Several lawyers were placed in pretrial detention without sufficient evidence or reasoning, in violation of international human rights standards. The Special Rapporteur emphasized that these actions appear to be part of a broader effort to silence dissent and suppress the free exercise of the legal profession in Türkiye.
The ByLock App: A Controversial Evidence Tool
The communication also sheds light on the controversial use of the ByLock messaging app as evidence in terrorism-related prosecutions. The Turkish government has treated the use of ByLock as definitive proof of membership in the Hizmet/Gülen Movement, which it classifies as a terrorist organization. However, numerous reports, including digital forensic analyses, have raised significant doubts about the reliability and accuracy of this evidence.
According to the Special Rapporteur, many defendants were convicted based solely on their alleged use of ByLock, even though Turkish prosecutors have been unable to present the actual content of communications made through the app. The government’s claim that ByLock was designed exclusively for members of the Gülen Movement has been challenged by digital experts, who argue that this assertion lacks a solid technical foundation. Furthermore, the process by which the Turkish National Intelligence Organization (MIT) obtained ByLock data remains shrouded in secrecy, with no clear legal safeguards or judicial oversight in place.
The Special Rapporteur highlighted several troubling anomalies in the ByLock data, including illogical session events and inconsistencies in the log data. These issues raise serious concerns about the integrity of the evidence used in thousands of convictions. Defendants have been systematically denied access to the ByLock data, preventing them from challenging the legality of their detentions and convictions. The European Court of Human Rights has noted the systemic nature of these violations, with around 8,500 cases related to ByLock prosecutions currently pending before the court.
Constitutional Crisis: The Executive’s Grip Tightens
The Special Rapporteur also drew attention to an escalating constitutional crisis in Türkiye, which threatens to erode the last remaining checks on executive power. In a high-profile case, the Turkish Constitutional Court ruled that the victim’s rights to be elected and to personal liberty and security had been violated. However, the Istanbul 13th High Criminal Court, instead of complying with the Constitutional Court’s decision, referred the case to the Court of Cassation, which twice refused to enforce the ruling. This unprecedented defiance of the Constitutional Court has sparked fears that the judiciary is being systematically undermined by the executive branch.
President Recep Tayyip Erdoğan’s public criticism of the Constitutional Court’s decision further exacerbates these concerns. In a speech delivered in November 2023, Erdoğan described the court’s ruling as “erroneous” and hinted at the need for a new constitution that would likely further diminish the power of the judiciary. Observers fear that the current judicial crisis may lead to the eradication of the Constitutional Court’s ability to serve as an effective check on executive power, leaving the country’s legal system vulnerable to further manipulation.
Call for Urgent Action
The Special Rapporteur has called on the Turkish government to take immediate action to restore judicial independence and address the systemic violations of human rights highlighted in her communication. She urged the government to provide detailed information on the charges and evidence used in the latest wave of arrests and to ensure that individuals facing terrorism-related charges receive fair trials in accordance with international standards. Additionally, she called for retrials in all cases where ByLock evidence was used and for the implementation of safeguards to address the disparities in the use of digital evidence in terrorism-related prosecutions.
The communication concludes with a stark warning: if the current trajectory continues, it could lead to the collapse of the rule of law in Türkiye. The Special Rapporteur emphasized that a functioning judiciary, free from political interference, is essential for the protection of human rights and the maintenance of democracy. She has given the Turkish government 60 days to respond to the allegations before the communication and any subsequent response will be made public.
As the situation unfolds, international human rights organizations and legal bodies will be closely watching how Türkiye responds to these concerns, with the hope that meaningful reforms will be implemented to restore the independence of the judiciary and ensure the protection of fundamental rights for all its citizens.
Categories: Turkey Human Rights Blog