À la recherche du temps perdu. Interview with Mr. Yavuz Aydin, Turkish judge, currently a refugee in the European Union

 
 

  1. Magistrates threatened with permanent impeachment and arrest obviously cannot judge independently and impartially. Do you trust in the courts from Turkey?

It’s not easy to reply this question without putting the matter of judicial independence in Turkey in its cultural and historical context. In her 96-year history, Turkey went through hard times on the way she paves for democracy. To name but a few, military coups of 1960 and 1980 as well as indirect military intervention of 1971 constitute the hardest times for the constitutional democracy and separation of powers. But even during those times, judges were not subject to such a dismissal. For example, after the bloody and treacherous coup d’etat 1980, number of judges and prosecutors subject to administrative or judicial proceedings was only 47 and a total number of 120 academics were sacked. Today, we are talking about 4500 judges/prosecutors (2500 out of which being arrested) and around 6000 academics having been illegally dismissed. Whereas 31 journalists were arrested after the military coup of 1980, being labelled as the ‘largest prison for the journalists in the world’, this number reached 300 after July 2016 in my beautiful country.

During the years I observed since year 2000 from different angles as a trainee judge, reporter judge, diplomat and finally as a practicing judge again, judiciary was still not perfect in Turkey. Having said this, I have to state that I had the chance to see most probably the best times of Turkish judiciary which didn’t last more than two or three years between 2010 and 2013. Even then, judiciary was seen as an instrument or as a tool to silence the dissidents to a certain extent, but the situation has never been so bad and miserable during the whole history of Turkish Republic. So, in a country where roughly one third (4500 out of 15.000 as of July 2016) judges and prosecutors were sacked and more than half thereof were arrested illegally, you cannot talk about justice anymore. Naturally, this brutality and arbitrariness had and still has a chilling effect on the courage and attitude of the remaining colleagues. Furthermore, some judges have been arrested only for refusing to arrest their colleagues or rendering relatively legal judgements during the trial phases of cases. At this point, it is worth noting that the government-driven High Council of Judges and Prosecutors (HCJP) of the time had already designed the criminal courts dealing with aggravated crimes and especially the peace penal judgeships which were solely mandated with arrest, seizure, blocking the access to certain websites, freezing of assets, etc. As an interesting indicator, even only the number of peace penal judges dismissed after July 2016 tells a lot. While there were 2745 judges/prosecutors in the first list of dismissals on 16 July 2016, only 3 of them were peace penal judges out of 719 of them. The remaining 716 were the ones mandated with arresting more than 80.000 people (including 2500 colleagues) within the pretext of terrorism-related accusations in last two and a half year time only. Number of those detained by the prosecutors within the same context exceeded 140.000. During the first six months of ‘State of Emergency’, many of these people were held in improper detention conditions up to 30 days without seeing a judge and 5 days without seeing a lawyer.

Inter alia, the role of Constitutional Court should also be mentioned. Having unanimously signed the dismissal decision for two members of the Constitutional Court in two-weeks’ time based on the groundless accusation of “being member of, or have relation, connection or contact with terrorist organizations or structure/entities” was not enough for them. The same members of the Constitutional Court -for the sake of rule of law and democracy of course (!)- ruled that they don’t have the mandate to review the legality of the Decrees with the power of Law issued during the State of Emergency. Thanks to this decision has it been possible and “legal” to rule the country with decrees the effect of which are designed to remain even after the state of emergency.

Though shadowed by the rhetoric and persecution of Erdogan government and judiciary, the attitude of defence should also be mentioned here. Turning a blind eye to all this barbarism including more than 500 lawyers being arrested, Prof Metin Feyzioglu (Head of Turkish Bars Association) has been among the pioneering voices to defend the Erdogan regime since the crackdown began. He volunteered to travel around the world to persuade his counterparts to the “need” to and “legality” of the measures taken in the country. When the Head of Istanbul Bar Association made statements to illegally refuse sending the lawyers to defend the accused, that was the same Feyzioglu who backed him instead of calling him to stop abusing his power. Furthermore, against the criticisms in the face of hostage diplomacy of Erdogan regime based on keeping the American Pasteur Brunson under arrest for 20 months, he said “Turkey is a democratic state governed by rule of law, there is an independent judiciary in Turkey and he had full confidence in Turkish courts”. For this reason, many people couldn’t find a lawyer to defend himself. Because, the atmosphere of fear over the lawyers was as strong as it was for the judges. In this atmosphere of fear, being “brave” had a high cost for a few lawyers. So, very few of the accused people could afford paying around five-fold more money to these lawyers. Hence, they are not only the judges whom I can’t trust in Turkey now. In this regard, what I see in today’s Turkey cannot be described with the notion of “banality of evil” which was used by Prof Hannah Arendt to explain the attitude of General Adolf Eichmann in Nazi Germany. Because, what we see in the rhetoric and acts of these people is beyond being in the chain of command or conscientious ignorance.

  1. The new judges, recruited in record time and in such a context, can offer any guarantee in this respect? Is it decent that we can talk more about justice?

As of 15 July 2016, there were around 15.000 judges and prosecutors in Turkey. After the purge, only in 9 months, this number climbed to 16.000 from 10.000. According to the statements of the Turkish justice minister, there will be almost 20.000 judges and prosecutors within a few months. This means that work experience of 50% of them will be less than 3 years. This aspect is only about professional background and experience.

When it comes to the overall quality of them, the picture is not brighter. In a country where eradication of dissidents started from the judiciary itself and covered every segments of society as a dark cloud of fear, these newly recruited judges cannot be expected to meet the ethical and moral criteria of being a judge. Of course, there may still be exceptions, but considering the collapse of separation of powers and judicial independence thanks to the constitutional amendment of 2017, the filtering and evaluation criteria have already been designed in a way to select and transform them to obedient civil servants.

When I read the recent speeches and statements of presidents of high courts in my country, I recall the famous letter of the President of the People’s Court which was established in 1934’s Germany after the Reichstag fire. In his letter, this man assures his Führer that every judge would render decisions considering what Hitler would think and do in each case. This man’s name was Roland Freisler, but he is now buried in Berlin with no name on his grave stone. One of his companions, Justice Minister of late 1930s (Guertner) -when firing a young judge who resisted to implement a violent decree of the time- was saying: “If you cannot recognise the will of the Führer as a source of law, then you cannot remain a judge.” However, people remember their names with disgust and shame only. Today, I believe everyone says „There are judges in Berlin” again.

So, it would be more than being naive to talk about justice in Turkey today similar to many different examples in Turkey or elsewhere in the world. However, as an old Latin proverb says, the law sometime sleeps but never dies. This is why I still keep my hopes alive.

  1. Is it possible to speak about a country where the law is put in brackets, where the values of democracy are progressively moving away, where the dissenting voices are stifled, where the defenders of the law, the journalists, those who wish peace, those who scream so that the children do not die, are decreed terrorists?

There are such countries in the world. Myanmar, Iran, Sudan, Rwanda of 1990s, Xinjang (East Turkistan) region of China, etc. are the examples which come to my mind. However, they were neither claiming to achieve advanced democracy nor had a candidate status for full membership to the EU. What make things different for Turkey lies at this point. It shouldn’t be omitted that corruptive character of unbalanced and unchecked power is the same all over the world. With the failed coup attempt, Erdogan somehow possessed an excuse to consolidate such a power. That is why he described this attempt as “a gift of God” on that very day. Maybe we can learn more in depth about the background, details and planners of this “gift” in future, but the reality is, he used this opportunity much more effective than anyone could expect. How did he do this? Attacking the judges and justice at first place helped him a lot in this sense. Maybe he had read Shakespeare’s Henry IV in which Dick the Butcher says “The first thing we do after the revolution, let’s kill all the lawyers.” In the story, he believes that lawyers stand in the way of their planned revolution with Jack the Spade. For that reason, they must be eliminated.

  1. Various actions have been undertaken with European institutions and parliaments to raise their awareness of the situation of Turkish justice. Is the mobilization of international civil society and judicial actors sufficient? What do you expect from your fellow judges in the Member States of the European Union? How can we help you?

Many of the European leaders reacted smoothly to the crackdown and mass breaches of human rights in a country negotiating for full membership to the EU. One may say, the accession negotiations were de facto suspended with Turkey already. But that is the point actually. Because, it was not a secret that Erdogan regime was seeking a way to get rid of pressure from the EU to strengthen democracy and human rights while negotiating for visa liberalization and upgraded customs union. Not surprisingly, this is more or less what seems to be happening when you look at the picture from the dissidents’ eyes of Turkey. Thanks God, there are judges in Berlin, Paris, Dublin, Bucharest, Athens, Rome, Brussels, etc. Owing to the established checks and balances system, the governments of Europe and hence the EU are resisting to such a dirty deal. However, taking into account the rising racism and nationalism throughout the continent, I fear there may be a kind of ignorance in return for keeping millions of Syrian refugees out of Europe.

On the other hand, we saw some encouraging reactions in international area. In this sense, MEDEL, IAJ, EAJ, J4J made urgent statements immediately after the arrests of judges began. Among others, I saw and appreciated the thorough statement of Romanian Judges Forum. The first solid reaction came from European Network of Councils for the Judiciary (ENCJ) with suspension of Turkish Council for Judges and Prosecutors (CJP) from ENCJ activities. This stance was followed by European Judicial Training Network (EJTN) too. At this point, I should share the reaction of a colleague who was in prison for 18 months in Turkey and managed to flee Turkey afterwards. When I saw him a few months ago, I asked if he and other colleagues in jail could follow the reactions from world. He said, only the pro-government newspapers were let in prison and one of the happiest moments they had was when they read the lines mentioning about “the demonstration of Italian judges and lawyers to protest Turkish government and to support the terrorists”. He said those two lines even in the wordings of a pro-government paper which names us “terrorists” gave them the hope and strength to resist. I think this tells a lot.

Within the context of international and inter-state organisations, Parliamentary Assembly of Council of Europe (PACE) and Venice Commission of the CoE as well as the previous Human Rights High Commissioner (Nils Muzniesk) of the Coe adapted promising resolutions and reports. Some special rapporteurs from the UN like Nils Melzer produced sound reports regarding the persecution and torture in Turkish prisons and eastern part of the country targeting hundreds of thousands of Kurdish origin people. EU Commission’s Progress (or Regress) report of November 2016 and April 2018 made a clear and objective evaluation of arbitrariness throughout that period. Human Rights Watch also published a thorough report on the persecution to judges in Turkey. Amnesty International has also been doing a great job to be the voice of all silenced people in Turkey. There were frustrating reactions as well. For example, the reports and statements of the European Parliament (EP) including those of Kati Piri (MEP) who is the Reporter on Turkey insistently seemed to avoid mentioning the judges as victims of the brutality in Turkey.

Unfortunately, the main source of frustration in this process was the ECtHR. As if there is an independent judiciary or any other effective domestic remedy in today’s Turkey, they overturned more than 30.000 cases lodged after July 2016, referring to exhaust all domestic remedies. Ignoring all the arguments in those files supported by facts in addition to respected and credible reports of CoE and UN bodies as well as international NGOs, the European Court with this attitude proved to be part of the problem rather than the solution mechanism. This means any person deprived of his/her job and career will have to wait for around 10 years to expect a decision from the ECtHR. Because, they need to go to the State of Emergency Commission which reinstated only 3.000 out of 50.000 files (6%) they concluded until now in 17 months. 85.000 more applications are still awaiting decision before the said commission. With its government-driven composition and way of functioning which are against the recommendation of the Venice Commission and with 3% success rate of reinstatement, all these 135.000 applicants now have to wait for a decision from this commission first. Then, they will go to the administrative courts, then appeal court, then Constitutional Court, and only after than to the ECtHR. Surprisingly, the Strasbourg Court still didn’t consider the applications under Article 3 and 5 of the ECHR for which the domestic remedies were exhausted in last 30 months. This is indeed an alarm bell for the court which was founded to restore democracy and human rights in Europe.

Under these circumstances, what your colleagues in Turkish prisons expect from you is raising this issue in every platform to be heard by Strasbourg. Even the efforts in this direction will for sure give them the strength to be hopeful and courageous in their fight for freedom and justice.

 

  1. How can you resist in this Kafkian universe? A judge who goes through such a traumatic experience is a kind of martyr.

I could have never imagined Turkey would one day experience such an illegality and arbitrariness. So, it was indeed like falling into a Kafkian universe one of a sudden. During the first few days, I was expecting things to turn to normal after coming through the shocking atmosphere caused by the death of 250 innocent people and jets flying over Ankara. On the contrary, everything got worse and worse following the declaration of State of Emergency and immediate derogation from all international conventions on human rights like Universal Declaration of Human Rights and European Convention on Human Rights. Then, the President and ministers made oaths to make the prisoners beg for death in their holes without seeing the sun for a life-time. It is not easy to lose everything you have in one day. Your job, bank accounts, credit cards, car, house, etc. everything you have vanishes with a seizure decision. If you are alone, it may be relatively easier, but your spouse and children also lives the same shock and loss along with you. That part is really destroying and hard to handle. Right after me, when I was hiding like a criminal, my wife was fired from her work officially because of my situation. Our passports were cancelled just like 140.000 others. So, we were not given any right to live. Considering almost 200.000 people share the same destiny, when you count the family members, it is literally leaving almost one million people to a civil death. So, we were lucky to be able to leave the country by paying our very last penny to the smugglers. It was like buying our freedom. Freedom to live penniless but honorable. Though we experienced unimaginable difficulties on our way, we ended up as refugees in Romania after a though legal fight at courts which lasted 11 months. There again in Romania, we felt how vital the justice and judicial independence was. We are thankful to MEDEL, Romanian Judges Association, Amnesty International and Ungur Horia Şerban who is our friend rather than lawyer. I couldn’t have keep my hope and courage alive without their support. Eventually, I can say that I witnessed the fairness and independence of Romanian judges I met in court rooms though at different sides of the bench. In this story, my wife and children are the real heroes for trusting me and not leaving me on my own even in the most horrifying situations.

  1. Your fellow judges refuse to speak. Most likely, for fear. If we were going to give up time, would you choose the same profession?

I can’t blame them at all. You cannot expect everybody to be martyr in the end. Considering the atmosphere of fear they breathed along with the colleagues who were arrested or sacked only. As I mentioned, some of them refused to arrest their colleagues after a while and they were arrested immediately. Those who see this think twice before reacting. At the end of the day, the judges and prosecutors in Turkey were not trained as Socrates, rather like Meletus. So, they thought they needed to feed their children and keep silent in order to survive. I suppose this is the case for many of the fellow judges we worked with. Because, I know the story of two fellow judges. I know them both in person. In the wake of the failed coup attempt, one is at the bench, the other at the chair of suspect. The one at the bench arrests the other one with tears in his eye, then comes down to the one he arrested and hugs him, whispering to his ear: “forgive me my friend, if I didn’t arrest you, we would both be arrested. I have children to feed”.

Thank you so much!

Interview conducted by

Dragoş Călin,

judge, Bucharest Court of Appeals[1]

Romanian JudgesForum Review no.2/2018

www.forumuljudecatorilor.ro

[1] E-mail professional: dragos.calin@just.ro.

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