Turkish lawmakers should reject the proposed extension of unnecessary emergency powers for three more years, and instead end the corrosive impact of these powers on human rights and the rule of law, said the International Commission of Jurists (ICJ) today.
The ICJ is concerned that the dismissal of 17 judges and prosecutors by Turkey’s Council of Judges and Prosecutors on 10 January, for alleged membership of or connections with the “Fetullahist Terrorist Organisation” (FETÖ) did not respect their right to a fair trial.
The decision by the Council of Judges and Prosecutors (CJP) is particularly problematic because it lacks any reasoning on the individual situation of each judge and prosecutor.
The ICJ points out that international law provides that judges may be dismissed only through a fair hearing before an independent authority. The lack of individual reasoning in dismissal decisions strikes at the heart of the right to a fair hearing.
Furthermore, the ICJ recalls its conclusions in the 2018 report Justice Suspended that, within the current constitutional framework, the Council of Judges and Prosecutors (CJP) is not provided with the guarantees necessary to ensure its institutional independence.
Despite the state of emergency having been lifted since last July 2018, extraordinary powers given to the Council of Judges and Prosecutors to dismiss judges and prosecutors during the State of Emergency were extended for 3 years by Law no. 7145. It is unacceptable in a State governed by the rule of law that judges and prosecutors – whatever charges may be against them – be dismissed without respect for the right to a fair procedure, in disregard of international standards.
Considering that the Council of State has not delivered a single decision about dismissed judges and prosecutors during the state of emergency, in more than two years now, it seems likely that it would take at least two years before the recent decision of the CJP is reviewed by an independent judicial authority. Until then, absent further action by the CJP, the reasons for the dismissals will not be known by the purged judges and prosecutors, or by the general public.
The ICJ calls on the CJP to revoke its order and re-examine the cases under the ordinary dismissal procedures and on the Turkish Government and Parliament to modify the constitutional rules on the CJP to ensure its full independence.
Finally, the ICJ expresses concern at the conviction of the former head of the judges’ organisation YARSAV, Mr Murat Arslan, for alleged membership of FETÖ. There are credible reports of violations of the right to a fair trial in the proceedings, including four changes of judges during the proceedings, often without reasons given and without re-examination of witnesses, significant limitations to the defence access to evidence before trial and use of witnesses with undisclosed identity. The ICJ considers that these allegations of violations of the right to a fair trial should be thoroughly re-examined in appeal before an independent court and in full respect of Mr Arslan’s fair trial rights.
Background
On 10 January, the Council of Judges and Prosecutors made use for the first time of special powers to dismiss judges and prosecutors without complying with the ordinary procedure, invoking extraordinary powers enacted by Law No 7145 of 31.07.2018. This legislation inserted into ordinary law several powers that had previously existed under the state of emergency legislation.
One of the amendments made by Law No 7145 of 31.07.2018 was to the Decree Law No 375 dated 1989. A Temporary Article (Article 35) was added to the Decree. On the basis of this article, the General Assembly of the Constitutional Court, the Presidency Councils of Court of Appeal, the Council of State, the General Assembly of the Council of Judges and Prosecutors, a Commission set up by the Ministry of National Security, and the Presidency of the Court of Audit, were each authorised to take dismissal decisions for public officials/judges and prosecutors under their mandate for three years from the date of the endorsement of the law No 7145.
Based on this amendment, on 10 January 2019 the Council of Judges and Prosecutors took its first decision (Decision No. 2019/1) by dismissing 17 judges and prosecutors (6 Public prosecutors, 3 Members of Administrative Court, 7 judges of of Tax Court) based on the allegation of membership to FETÖ.
International law and standards provide that disciplinary proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.
The UN Basic Principles on the independence of the judiciary set out international standards for discipline, suspension and removal of judges, including in order to ensure impartiality and independence of courts and tribunals as required by international law (including the International Covenant on Civil and Political Rights and the European Convention on Human Rights). The Basic Principles state that a:
“charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge. …
The Consultative Council of European Judges (CCJE) adds that “a Head of State, Minister of Justice or any other representative of political authorities cannot take part in the disciplinary body.”
Contact
Massimo Frigo, ICJ Senior Legal Adviser for the Europe and Central Asia Programme, t: +41 22 979 3805, e: massimo.frigo(a)icj.org
The ICJ today put the spotlight on serious threats to the rule of law in Hungary, Poland and Turkey, speaking at the UN Human Rights Council in Geneva.The statement, made during general debate on situations that require the Council’s attention, read as follows:
“The International Commission of Jurists (ICJ) would like to bring to the Council’s attention the serious threats to the rule of law in Hungary, Poland and Turkey.
In Poland, the Government has adopted legislation to arbitrarily force into involuntary “retirement” one third of its Supreme Court Justices, delivering a fatal blow to the independence of the judiciary, already strained by past reforms.
In Hungary, multiple legal reforms have weakened judicial independence and effectively criminalized the activities of certain human rights NGOs and curtailed their financing.
Finally, in Turkey, consolidation of emergency measures in ordinary law, regressive constitutional reforms, and the mass dismissal of judges and prosecutors have removed essential protection for the independent functioning of the judiciary.
The ICJ is further concerned by the protest ban against the Saturday Mothers to hold weekly protests in memory of their disappeared family members, in breach of their right to freedom of assembly.
The ICJ is alarmed at the escalation of such threats to the very basic tenets of the rule of law in Europe, without specific action being taken by this Council to address them.
The ICJ urges the Council to give attention to these developments, which indeed form part of a broader global attack on the rule of law,[1] and to keep under observation the human rights situation in these countries.”
[1] See ICJ, “The Rule of Law under Global Threat” (statement in general debate on the oral update of the High Commissioner), 11 September 2018: https://www.icj.org/hrc39-gd2-hc/
The ICJ today called on the UN Human Rights Committee and a group of UN Special Procedure mandates to take urgent follow up action on Venezuela in light of the grave and ever deteriorating human rights situation in the country.
In a letter to the UN Human Rights Committee, the treaty body responsible for monitoring implementation by States parties to the International Covenant on Civil and Political Rights (ICCPR), the ICJ called for urgent action by the Committee, either through its established follow-up procedure and/or through requesting a special interim report. The Committee’s follow-up procedure was referenced in the Committee’s Concluding Observations on Venezuela’s fourth periodic report under the ICCPR. Special interim reports may be requested by the Committee under Article 40(1)(b) of the ICCPR.
The ICJ also called for urgent action to be taken by the following UN Special Procedure mandates: the Working Group on Arbitrary Detention, the Special Rapporteur on freedom of opinion and expression, the Special Rapporteur on freedom of assembly and of association, the Special Rapporteur on the independence of judges and lawyers and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment. This group of Special Procedure mandates had on 4 August 2017 issued a joint statement on the human rights situation in Venezuela.
The ICJ’s letters draw attention to several critical areas of concern:
ICJ-Correspondence-VenezuelaFollowUp-HRCttee-2017-09-28 (download letter to the Human Rights Committee, in PDF)
ICJ-Correspondence-VenezuelaFollowUp-SPs-2017-09-28 (download letter to the Special Procedure mandates, in PDF)
ICJ reports:
Venezuela: the Supreme Court of Justice has become an arm of an authoritarian executive
Venezuela: rule of law and impunity crisis deepens
Venezuela: dismissal of Attorney General a further blow to the rule of law and accountability
The Turkish government should immediately release 11 people, including eight Turkish human rights defenders, who were detained yesterday in Istanbul, said the ICJ today.
The human rights defenders were arrested on unknown charges while attending a training in Istanbul on digital security and information management; also reported arrested were two trainers (reportedly a German and a Swedish national) and the owner of the training venue.
Amnesty International has reported that they were denied access to family members and lawyers, contrary to existing regulations.
“These arrests are an alarming setback to efforts to restore the rule of law in Turkey,” said ICJ Secretary General Sam Zarifi.
“Arrest and harassment of human rights defenders violates Turkey’s international legal obligations. Turkish authorities should be protecting human rights and supporting the important work of human rights defenders, but instead we have witnessed a continuing pattern of arrests on human rights defenders in the country,” he added.
On 6 June, Taner Kiliç, the President of Amnesty International Turkey was arrested.
He is currently detained on remand in what several international observers have qualified as baseless charges.
Turkey is currently under a State of Emergency enacted after the attempted coup d’etat of 15 July 2016.
While recognizing the serious attack suffered by Turkish institutions, the ICJ has repeatedly called for an end to this year-long state of emergency under which sweeping measures have been enacted that continue to erode human rights, including rights of fair trial, the right to liberty, and freedoms of expression and association.
“It is time to turn the page of the emergency and return to the rule of law,” said Sam Zarifi. “The work of human rights defenders, judges and lawyers is essential to a democratic society that upholds human rights.”
Background
The human rights defenders arrested are Idil Eser (current Director of Amnesty International Turkey, photo), İlknur Üstün (Women’s Coalition), Günal Kurşun (Human Rights Agenda Association), Nalan Erkem (Citizens Assembly), Nejat Taştan (Equal Rights Watch Association) , Özlem Dalkıran (Citizens’ Assembly), Şeyhmuz Özbekli, and Veli Acu (Human Rights Agenda Association).
Contact
Olivier van Bogaert, ICJ Director of Media & Communications, t: +41 22 979 3808 ; e: olivier.vanbogaert(a)icj.org
EU: Access to a lawyer in juvenile justice proceedings remains a key concern in several EU Member States
Pakistan: Military “justice” system reflects a glaring surrender of human rights
Egypt: Al-Sisi must reject the new Criminal Procedure Code