Imprisoned judges and judicial independence

The mere number of imprisoned Turkish judges is so intimidating, that a very special gesture is necessary if judicial independence in Turkey is to be protected. Would it not be preferable to deal with the cases in Strasbourg even before all the domestic remedies have been exhausted? Judges for Judges board member Ybo Buruma has the impression that the European Court of Human Rights does not wish to follow this line of reasoning.

Murat Arslan is a Turkish judge and President of Yarsav, the Independent Judges & Prosecutors Association. In 2017, he received the Vaclav Havel Human Rights prize awarded by the Parliamentary Assembly of the Council of Europe. On 18th January 2019 he was convicted on charges of being a member of an armed terrorist organization (FETÖ/PDY, also known as the Gülen movement) and sentenced to ten years imprisonment. 800 to 1200 Turkish magistrates are imprisoned alongside him, many in appalling conditions. For example, Neslihan Ekinci, the first female member of the Turkish Council for the Judiciary (HSYK) was held in solitary confinement between 18th July 2016 and May 2018. She is now severely traumatised. Judges for Judges observers attended the final session of the Arslan procedure. After discussing the fairness of his trial, the impartiality of the judges and the value of the evidence they heard him say “one day the rule of law will be restored”.

Judges for Judges observers also attended the trial of Mehmet Tank, the previous vice president of the International Association of Judges. It was assumed his case would end in a decision to put him on probation. However the observers were shocked when they realised that the prosecuting judges had decided the case during a ten minute break and sentenced Tank to eight years and ten months imprisonment. This is just a brief story of three judges, colleagues of mine, in a country where since the summer of 2016 over 4400 judges and public prosecutors have been fired.

In the 20th century, threats to judicial independence were supposed to be a prerogative of authoritarian regimes who came to power by military force and guns. However, at the present time leaders with authoritarian tendencies have been elected not only in Turkey but also in Russia, Hungary, India, the Philippines and Brazil. Some even add the USA to this list. Unlike Hitler and Mussolini, these leaders did not initially oppose liberal democratic values nor are they fundamentally against the Rule of Law such as the Chinese authorities. However, after a certain time, the leaders of these “illiberal democracies” change the democratic rules of the game by denying the legitimacy of the opposition, by tolerating or encouraging violence and by indicating willingness to curtail civil liberties. Their respect for universities, mass media and the judiciary is weak to say the least.

In the past, many authoritarian regimes did seek the support of the courts in securing legitimacy for their government and often showed deference towards legal systems. Judges were seldom convicted or detained. At most, heads of the judiciary would be replaced by others. Even in Nazi Germany, judges who opposed Nazi policies were either mildly reprimanded or in the worst cases sent into obligatory retirement. This has to do with the fact that even authoritarian leaders need to structure their rule. “Ruling by law” also benefits the international reputation of a country.

Many cases are non political and a regime is able to control officials of lower ranks by law. The law may even give state terror, e.g. acts of violence against the opposition, a semblance of legal legitimacy if only by preventing its condemnation. All this meant that judges in authoritarian states had to compromise. How far could they go in observing the rules of a regime e.g. enforcement of strict rules supposedly necessary for national security. Normally, they did their jobs, some more reluctantly than others and with more or less enthusiasm for the new rulers. Nazi judge Roland Freisler was clearly biased, so much so that Goebbels dropped the plan to make a film of the trial under his presidency against the conspirators behind the attack on Hitler’s life on 20th July 1944.

On the other hand, Brazilian judges did review the legality of measures carried out by the military regime between 1964 and 1985 and sometimes repudiated them using a strict interpretation of the rules. They acquitted many people and handed out fairly moderate punishments. Nowadays, judges in “illiberal democracies” continue to live with the problem of compromise. It has perhaps become easier for our colleagues to raise legal objections as almost everywhere human rights have been given relevance in positive law. Judges can also invoke international principles of judicial conduct as laid down in the Bangalore Principles. On the other hand however we now see judges being targeted by rulers themselves as has been illustrated in Turkey. This raises the question whether the regional Human Rights Courts should be helping them. The Inter-American Human Rights Courts were not deterred in making strict decisions against Peru (1997), Venezuela (2003) and Ecuador (2007) in cases regarding the dismissal of large numbers of judges. The recent example of decisive action by the European Court of Justice regarding the Polish judiciary highlights the importance of clear decisions by international courts in such sensitive matters.

But, how should this be done? It is indeed possible for someone (not necessarily a judge) who has been convicted and/or imprisoned to bring his/her case before the European Court of Human Rights providing all other remedies in the home country have failed. However, considering the high number of imprisoned and dismissed magistrates I wonder whether guarantees given against outside pressures on the acting judges are still sufficient. Is it not so that with regard to these FETÖ/PDY cases one can no longer speak of an effective national remedy as mentioned in article 13 ECHR? With a view to the independence of the judiciary in Turkey, would it not be preferable to deal with the cases even before all the domestic remedies have been exhausted?

Last December during an interesting Conference in Strasbourg on the subject “Judicial independence under threat?” I had the impression that the European Court of Human Rights did not wish to follow this line of reasoning, one reason being that it would be difficult to substantiate the implicitly negative evaluation of the currently acting judges. Moreover, no decision has ever been made whether the judiciary, rather than citizens of a country, may invoke the right to an independent tribunal.

However, there might be another way of stressing the importance of judicial independence: in the recent Navalnyy v. Russia case (15 November 2018) the Court established beyond reasonable doubt that the restrictions regarding the freedom of assembly imposed on the applicant had an ulterior motive within the meaning of Article 18 of the Convention, and aimed to suppress political pluralism which forms part of “effective political democracy” governed by the “rule of law”.

Could this line of thought be followed in the Turkish cases? It is hard to decide which route is best. In my opinion an important aspect to consider is the heavy load on the shoulders of the currently acting Turkish judges who try to maintain the values of the Rule of Law. In order to help them, I hope the European Court of Human Rights will clearly acknowledge the relevance of judicial independence. The mere number of imprisoned judges is so intimidating that a very special gesture is necessary if judicial independence in Turkey is to be protected. Murat Arslan will surely agree.

Ybo Buruma

Member of the Board of Judges For Judges