A Profession in Irons

Since significant liberalisation of its national economy in the 1980s, Turkey, has become a pivotal part of the international economy and weathered the economic crises between the 1980s and 2000. Turkey’s exports continue to break records, while trade deficit levels continue to drop. Commensurate with her unique strategic position, Turkey is busy enhancing her international diplomatic, economic and cultural relations, unleashing enormous opportunities, not only for the economy but also for global inward investors.

However, FDI and the GDP are not at desired levels. Economics minister Ali Babacan underlines that Turkey’s further success and the exploitation of the country’s vast potential, and to avoid the mid-income trap, depends on a thorough legal and judicial reform to counteract low levels of public confidence. According to daily newspaper Milliyet, in 2013 only 24 per cent of the population consider that the Turkish judiciary is independent and only 26 per cent trusts in the system.

Constitutional neglect

Turkey has grossly neglected its judiciary and its service capacity has increased very little compared to huge economic growth. The 2011 constitutional amendments introduced very limited improvement but recent changes in the law, reshuffling the Higher Board of Judges and Public Prosecutors, HSYK, reinstated the powers of the Ministry of Justice to previous levels.

Very hardworking judges delivering high levels of justice in traditional offences and average civil matters have earned Turkey relatively high judicial standards, distinguishing it from similar countries. However, extensive work overload causes considerable delays. Accurate delivery of justice is low and the ability to deliver justice is very much dependent on the parties’ behaviour in the judicial process, voluntary cooperation and good faith. Yet, withholding the truth and evidence from the court is tolerated while perjury and obstruction of justice are not recognised offences.

However, political efforts to restrict the judiciary’s independent function and to exert political influence avoids identifying the real causes of the problem, a lack of full transparency and proper accountability in all judicial bodies and their activities. On the other hand, the judiciary over relies on the independence of its members considering themselves immune from civil and criminal liability and they lack the requisite transparency and accountability towards Turkish society.

The Board for Judges and Prosecutors, HSYK, that deal with the management and allocation of the country’s judge and prosecutor resources according to the workload and statistics, lacks the professional skills to manage such large and dedicated organisation as well as being unable to appreciate society’s expectations of the judiciary. On the other hand the Board is far from being transparent and accountable as it exercises absolute and formidable discretion on promotion, rotation and relocation, further training of judges and prosecutors. Because of this very fact it can be justified that the Board needs to be under the influence of the Ministry of Justice.

The court of appeal has led the first instance courts to effectively delegate judicial duties and authorities to the so-called ‘court appointed experts’, seen as an easy and a pragmatic solution to the workload. It is unconstitutional and illegal for them to take on judicial powers, however, they have become the main dispute adjudicators, as the judges often ask their opinion on disputes and then follow their recommendations. This has almost reduced the judges’ role from adjudicating disputes to arbitrating the parties’ struggle with unskilled, arbitrary and irresponsible experts. The majority of practising jurists consider experts corrupt, rotten and lacking proper scrutiny.

Particularly at the appeal level, the judiciary has failed to establish proper transparency. The appeal courts, complaining of heavy workload and insufficient capacity to deal with the number of appeals, fail to acknowledge that they effectively deprive the public of their appeal rights by rendering decisions without proper examination and reasoning. This can be taken as an admission that they merely rubber stamp appealed decisions, failing to properly carry out their duties. However members of the court of appeal are immune from liability for their negligence and omissions or miscarriages of justice.

Unshackle the judges

Turkey has developed a peculiar dispute resolution culture, charging judges with a duty to establish the truth while handcuffing them by a lack of proper disclosure rules. The new Civil Procedural Code introduces the obligation to act honestly but with no proper mechanism or sanction to ensure full and frank disclosure. This would ensure that the truth is established effectively and, more importantly, shifts the burden of workload in judicial processes from the courts to parties.

Turkey’s long needed judicial reform can be achieved by only changing the dispute resolution culture, imposing transparency and accountability on all level of judicial activity and organs.

First published by The Lawyer in Feb 28, 2014.

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