The opposition's challenge to Erdoğan's tightening grip on the judiciary in the Constitutional Court can limit the damage to a certain degree, but will not be able to completely thwart the encroachment of the executive branch on the judiciary. In other words, Erdoğan will be able to consolidate absolute power in his hands when he effectively ends the independence of the judicial branch in a grand scheme of reordering the balance of power among state institutions.
The most important indicator for the presence of politically motivated abuse of the criminal justice system is discrimination, which is clearly visible in the latest corruption investigation. Erdoğan's son, businessmen close to him and even Cabinet ministers have been afforded special protection by the government, while legal proceedings against opposition figures were put on a fast-track.
For example, the summary of proceedings documents filed against four ministers who were forced to resign due to corruption allegations were stalled by the justice minister for one-and-a-half months before he then returned them to the prosecutor's office in violation of the established practice and legal rules that require the justice minister to simply forward them to Parliament immediately for possible trial proceedings in a high court.
In contrast, the summary of proceedings filed against main opposition Republican People's Party (CHP) leader Kemal Kılıçdaroğlu and junior opposition Nationalist Movement Party (MHP) leader Devlet Bahçeli for public remarks, a minor offense, were sent to Parliament by the justice minister in a very short period of time. The fact that most of the detainees in the corruption investigation were released after an abrupt change of the lead prosecutor in the case is also evidence that the government has manipulated the procedure itself, allowing suspects to avoid pre-trial detention and likely soon defeat the charges.
It is clear that the Erdoğan government has been abusing the criminal justice system in a prejudiced way. With new legislative changes that subordinated the judiciary to the rule of the executive, Erdoğan will not hesitate to target his political and non-political opponents in an even more crude and vicious way than ever before.
The harsh public statements made by Erdoğan and his ministers alleging that people and groups critical of the ruling Justice and Development Party (AKP) government have committed a crime is another indicator that Turkey is moving quickly to a stage where politically motivated criminal justice works overwhelmingly in the favor of the government. It has almost become a daily routine on the campaign trail for Erdoğan to accuse the media, business groups, civic organizations and opposition parties with "treachery" and "betrayal of the nation" without offering a single shred of evidence.
With relentless, systematic public smears, Erdoğan tries to intimidate any opposition that might dare stand in his way. He will likely try to engineer an even larger politically motivated lawsuit against journalists, civil society organizations and business groups using the government's undue influence on criminal justice system.
He constantly attacks the Hizmet movement inspired by Islamic scholar Fethullah Gülen and calls it a "parallel state," an invented term to divert public attention from the government corruption scandal. His constant diatribe denouncing business groups like the Turkish Confederation of Businessmen and Industrialists (TUSKON), the country's largest business advocacy group, and the Turkish Industrialists and Businessmen's Association (TÜSİAD), the business group representing the nation's wealthiest and most powerful, for conspiring with the "interest lobby" -- another term made up by Erdoğan -- is another reflection of this dangerous trend. The national media, including the largest dailies Zaman and Hürriyet, feel the wrath of Erdoğan practically every day. The international media get their share of being the subject of tirades from the prime minister, as well. These public remarks raise the specter of a dangerous environment where politically motivated criminal justice can easily use guilt by association to thwart businesses, media, political parties and civic groups.
The third indicator of the scary prospect of Turkey being dragged into a politicized judiciary are the vague charges floated by Erdoğan and his people in government. In authoritarian regimes, the easiest way to attack opponents is to cast doubt on their patriotism and raise questions of espionage and violations of state secrecy. It sounds absurd and totally ridiculous, but if you send a message written in English on Twitter or Facebook, you can be accused of espionage by senior people in this government. If you participated in the Gezi Park protests in May and June of last year out of concern for the environment, you could be accused of being a member of an organized criminal gang working in tandem with global conspiracy groups. Unclear legal charges may complicate the defendant's case in a court of law, and if and when the original charges prove to be too weak to sustain the court challenge, the government can always blindside opponents with completely unrelated investigations l ike tax audits.
The most troublesome sign that Turkey is moving toward a politically motivated criminal justice system is the recent judicial bills -- some of which have already been approved in Parliament -- that will deal one blow after another to the independent and impartial judiciary. The prosecutors and judges in Turkey were already open to some degree of political influence before these changes were introduced. The government-orchestrated reshuffle of the judicial council paved the way for the reassignment of hundreds of judges and prosecutors, most of whom were looking into critical cases such as corruption, money laundering and the al-Qaeda terrorist network. If the controversial bill on the Supreme Board of Judges and Prosecutors (HSYK), Turkey's judicial council, is approved by the president, it will be almost impossible for judges and prosecutors to ward off political interference in investigations and trials.
In defending the HSYK bill, Erdoğan and his ministers, including Justice Minister Bekir Bozdağ and Foreign Minister Ahmet Davutoğlu, repeatedly point out that Germany does not even have a judicial council for appointments, promotions and disciplinary measures for members of the judiciary. This logic has a couple of fallacies. First, Germany has been criticized heavily for not having an independent judicial council as exists in most European states, not only by European organizations such as the EU and the Council of Europe, but also the Deutscher Richterbund, the German Association of Judges, the most representative professional organization of judges and prosecutors in Germany. Secondly, the German judicial system is a federal one, in contrast to Turkey's highly centralized system. While the federal government is in charge of federal courts, 14 German states (länders) have their own courts and rules for the promotion and appointment of judges. Some German states have their ow n judicial council and others are planning to introduce one. Since political authorities at the state level may represent different political parties from those at the federal level, it is difficult to subordinate the judiciary to one specific political group.
The fact that the German justice minister has the power to give specific instructions concerning individual cases, although rarely used in practice, is greatly criticized in Germany today. The Deutscher Richterbund believes that this mandate gives a public perception that politicians manipulate the judicial process for their own purposes and that it undermines public trust in the objectivity and independence of the criminal justice system. Hence, Germany will likely reform its judiciary as the UK did in 2006 by creating the Judicial Appointments Commission (JAC) to strengthen the principle of independence of the judiciary from political influence. Therefore, presenting Germany as an example for Turkey is not the best way to defend the Turkish government's attempts to rein in the judiciary.
If Turkey has to look for guidance, it should seek the counsel of the Venice Commission, the top authority in Europe on judicial and constitutional reforms. Erdoğan rushed to this body when his party faced a closure threat in the Constitutional Court in 2008. Faced with fierce opposition from the military and others, he again enlisted the Venice Commission's help for the 2010 referendum on judicial reforms. Now he does not even utter the words Venice Commission and, in fact, he has criticized the Venice Commission's comments on the failed constitutional drafting process and the HSYK changes. The commission made it very clear that new democracies such as in Central and Eastern European states should have an independent judicial council to guarantee the independence of the judiciary as well as recommending that old democracies also establish independent judicial councils. "In all cases the council should have a pluralistic composition with a substantial part, if not the majority, of members being judges elected by their peers," the commission underlined. In Turkey, the Venice Commission welcomed the new constitutional amendment related to the HSYK in 2010 and urged some changes to the HSYK bill in 2011 to further improve the council. Since the current corruption scandal, the Erdoğan government has rolled back these gains, neutered the council and effectively put it under the justice minister's control.
Turkey will pay a price for a politically motivated criminal justice system in several ways. For one, this will open the floodgates to serious flaws in investigations and court proceedings. Second, it will increase the political risk premiums for Turkey, making foreign investors jittery when it comes to committing millions, if not billions, of dollars to the country. Third, the democracy indices monitored by intergovernmental and nongovernmental organizations on issues ranging from transparency to corruption and from the investment climate to accountability will get worse. Fourth, it will be difficult for Turkey to successfully extradite suspects from abroad because trust in the delivery of fair justice in Turkey will be tainted. The European Convention on Extradition clearly indicates that extradition can be refused when prosecution is politically motivated.
The only courts that can withstand the crude treatment of Erdoğan will be the Constitutional Court in Turkey and the European Court of Human Rights (ECtHR) in Strasbourg, two courts over which Erdoğan does not have political leverage. It would not be surprising, however, to even see the Erdoğan government ignore injunctions from the top Turkish court and the Strasbourg-based rights court.
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