Perceptions and Mentality Structures Just Expectations A Compilation of TESEV Research Studies on the Judiciary in Turkey Since the European Union membership process has gained a central position in politics, Turkey has become focused on reforms and change. Turkey’s need for reform perhaps shows itself most keenly at the state institutions. It looks like it is a must for virtually the entire bureaucracy, and mainly the armed forces, the judiciary and the police, to restructure in terms of mentality, organization and functions. Taking this into consideration, Turkish Economic and Social Studied Foundation (TESEV) Democratization Program (DP) decided to continue its studies on “Perceptions and Mentalities” with bureaucratic institutions and address the judiciary as the first institution. One of the main reasons behind this choice was that there were very few studies on the judiciary, an institution that is in a central position in terms of democratization, law, and state-citizen relations in Turkey. Taking this shortcoming into account, a research series comprised of three separate studies that complement each other were prepared with an aim to inform and guide the public debate on the judiciary in Turkey. Based on these research projects conducted between early 2007 and mid-2009, TESEV DP published three separate books on judiciary in Turkish. The first book authored by Mithat Sancar and Eylem Ümit Atılgan attempted to shed light on the mentalities of judges and prosecutors and how they approach the concepts of state, justice and rights. The second book authored by Mithat Sancar and Suavi Aydın aimed to determine the perception of justice in the society and the functionality attributed to the judiciary as an institution in the public mind. The third book authored by Meryem Erdal takes a look at the press as an essential area for the institutional transformation of the judiciary based on democratic principles and norms as well as for the formation of the social perception that seeks a transformation as such. This English edition consists of an extensive summary of each of these three books with the aim to present their core findings in one volume. Turkey’s requirements in its democratization process are the formation of a citizenship in conformity with the universal norms recognized today, along with its administrative mechanisms. The bureaucracy of law and, hence, the judiciary are in a central position as the indispensible guarantees of such a transformation. We hope that this study will make serious contributions to discussions on the reforms that will be made in such an important area... JUST EXPECTATIONS A COMPILATION OF TESEV RESEARCH STUDIES ON THE JUDICIARY IN TURKEY JUST EXPECTATIONS: A COMPILATION OF TESEV RESEARCH STUDIES ON THE JUDICIARY IN TURKEY ISBN 978-605-5832-63-6 TESEV PUBLICATIONS Authors: Suavi Aydin, Meryem Erdal, Mithat Sancar, Eylem Ümit Atilgan Editor (in Turkish): Asena Günal Translator: Suzan Bölme Publication Coordinator: Koray Özdil Cover Design: Bora Tekoğul Page Layout: Serhan Baykara, Myra Printed by: Mega Basım Türkiye Ekonomik ve Sosyal Etüdler Vakf› Turkish Economic and Social Studies Foundation Demokratikleşme Program› Democratization Program Bankalar Cad. Minerva Han No: 2 Kat: 3 Karaköy 34420, İstanbul Tel: +90 212 292 89 03 PBX Fax: +90 212 292 90 46 [email protected] www.tesev.org.tr Copyright © February 2011 The viewpoints in this report belong to the authors, and they may not necessarily concur partially or wholly with TESEV’s viewpoints as a foundation. TESEV would like to extend its thanks to the Swedish International Development Cooperation Agency (Sida), the Open Society Foundation, and the TESEV High Advisory Board for their contributions with regard to the publication and promotion of this book. JUST EXPECTATIONS A COMPILATION OF TESEV RESEARCH STUDIES ON THE JUDICIARY IN TURKEY SUAVİ AYDIN MERYEM ERDAL MİTHAT SANCAR EYLEM ÜMİT ATILGAN Contents Foreword, 1 Introduction to the Compilation, 3 BOOK I: “Justice can be Bypassed Sometimes…”: Judges and Prosecutors in the Democratization Process, 5 Introduction, 7 Methodology and Scope, 7 Data Collection – Data Creation, 7 Identifying the Research Area, 8 Perception Patterns Regarding the Judge/Prosecutor Identity, 9 The Ideal Judge-Prosecutor, 9 To what Extent Ideal Fits Reality, 11 How Expectations from the Judiciary Affect the Identity Perception, 12 Identity, Social Origin, and Mentality Relationship, 12 How Socialization in the Profession Affects Perception and Mentality, 14 Perception Patterns on Judicial Independence and Security of Tenure of Judges, 16 Judicial Independence, 16 Historical and Essential Meaning of Judicial Independence, 16 Constitutional Framework of Judicial Independence, 17 System and Reality in the Eyes of Judges and Prosecutors, 19 Security of Tenure of Judges (and Prosecutors), 22 The Nightmare of Judges and Prosecutors: Transfer or Relocation, 24 Inspection and the Inspection Board, 25 Black Humour Stories, 26 Suggested Solutions to Issues of Independence and Security of Tenure, 27 “What everyone says”: Minister and Undersecretary Should Leave the Council!, 27 The Issue of an Independent Organization and Secretariat, 27 Election of HSYK Members, 28 Opinions Seeing the Solution in Members of the Judiciary, 28 Perception Patterns on Impartiality of the Judiciary, 29 Meaning and Dimensions of Impartiality, 29 Impartiality towards the State, 29 Political Judiciary, 30 Impartiality of the Judiciary in the Eyes of Judges and Prosecutors, 31 Those Thinking that the Judiciary is Impartial and any Deviations are Isolated Events, 32 Those Thinking that the Judiciary is Not Impartial, 32 The Issue of Statism in the Judiciary, 32 Perception Patterns Regarding the EU Process, 38 Confused Minds regarding the EU Harmonization Process, 39 Those Thinking the Process Runs Too Fast, 39 Those Thinking there is Adjustment Problem between Changes and Social Structure, 40 Those Thinking Gains are Important and Problems Surmountable, 40 Those Finding the EU and the Harmonization Process Harmful, 41 Precision Testing the Approaches to the Harmonization Process: Article 90 of the Constitution, 42 Those Finding the Amendment Irrelevant, 42 Those Regarding Opening Up to International Law as a Richness, 44 Is the Amendment Implemented?, 45 In Place of a Conclusion, 47 References, 50 BOOK II: “Just at Times, Unjust in Others”: Society’s Perception oF the Judiciary in the Democratization Process, 53 Introduction, 55 Methodology, 56 Subjectivity of Perceptions, 57 Perception of the Judicial Branch: Seeing the State and the Judiciary as One, 59 The Image of Courts and Courthouses: “Pray God Make No One Have to Go There”, 61 Perception of Justice and Law, 63 Image of the Ideal Judge, 65 Expectations from Courts, 66 Belief in Realization of Expectations from Courts, 67 Confidence in Fairness of Courts, 68 Perception Patterns on the Functioning of the Justice System, 70 Favouritism and Power Relations in the Justice System, 70 Arbitrariness and Personality in the Trial Process, 71 Long Duration of Cases, 72 Heavy Workload of Courts, 73 Seeking Your Rights is Expensive, 73 Seeking Justice Outside Judicial Processes, 74 Perception Patterns on the Independence of the Judiciary, 77 Perception Patterns on the Impartiality of the Judiciary, 79 Statism in the Judiciary, 80 Discrimination at Courts, 83 Evaluations on Special Courts, 85 Awareness Levels Regarding the Legal System, 86 In Place of a Conclusion, 88 BOOKIII: “Everyone Have Their Own Judiciary…”: Press’ Perception of the Judiciary in the Democratization Process, 91 Introduction, 93 The Susurluk case, 94 The Şemdinli case, 95 The Ergenekon case, 96 The Hrant Dink case, 97 Democracy Party Closure Case, 98 Welfare Party Closure Case, 99 The Deep State and Depth-Handicapped Trial, 100 Turkey’s Deep State, 101 The Deep State Declaration of the General Staff, 101 Deep State from the Eyes of the Judiciary, 101 Deep State Debates in the Susurluk Process, 102 Deep State Debates in the Şemdinli Process, 103 Deep State Debates in the Hrant Dink Murder, 104 Work of an Organization or “Neighbourhood Psychology”?, 106 Deep State Debates in the Ergenekon Investigation, 107 Media’s Ergenekon Definition, 108 Distinction between Military Judiciary – Civilian Judiciary, 109 Role of the Two-Headed Judiciary in Military Immunity, 110 Conclusion, 111 Judicial Independence, 113 Respect to the Judiciary: “Not only in Words but in Essence”, 114 Politicization of the Judiciary, 115 Media Influence on the Judiciary, 116 Media Calls the Judiciary to Do Its Job in “Party Closure”, 117 Legislature’s Interference in the Judiciary, 117 The Legislature-Judicial Branch Contention in the RP Closure Case, 118 Army in Critical Judicial Processes, 119 Judiciary’s Army Sensitivity, 120 Army’s Role in Party Closure Cases, 120 TAF’s Ergenekon Reaction, 121 Judicial Impartiality, 121 Conclusion, 122 Guarantees For Judges (And Prosecutors), 126 Dismissal of Prosecutor Ferhat Sarıkaya, 126 Conclusion, 127 Fair Trial, 129 Trial in a Reasonable Time, 129 Şemdinli Case Accused of “Fast Trial”, 129 “Delayed” Accusations in Ergenekon Investigation, 130 Presumption of Innocence, 130 Confidentiality of the Investigation, 130 Allegation that “Defendants were Not Informed of the Charges Laid Against them” in Ergenekon, 131 Conclusion, 131 Immunity and Impunity, 133 Immunity in the Susurluk Process, 134 Immunity in the Şemdinli Investigation, 135 Immunity in the Hrant Dink Murder Case, 135 Touching the Immunities in the Ergenekon Investigation,