Rule of Law slips further away in post-coup Turkey – Uzma Sherieff

The road to European Union membership is notoriously long and difficult; its conditions are many and, if successful, its speedy rewards scarce. Few nations are more familiar with this truth than Turkey. More than one decade on from the start of accession negotiations between Turkey and the European Union (EU) in 2005, only 15 Chapters have been opened of the 35 Chapters necessary for the accession acquis, and the possibility of opening the remaining Chapters looks increasingly bleak in light of recent developments in the Turkish state.


The failure of an attempted coup d’état against President Recep Tayyip Erdogan’s government on 15 July 2016, and the mass crackdown by the Turkish state against dissenters that followed, have shocked many in the EU and beyond who had come to view Turkey as a final bastion of secular and progressive politics in the otherwise quagmired Middle East. Indeed, these events have made it disturbingly clear that this label has already been slipping for some years now, and President Erdogan’s Turkey is today a drastically different place to what it once was, largely for the worse.


What has nonetheless come as a sudden turn of events has left the state of accession talks between the EU and Turkey unclear, and the politics of this once promising, but now questionable, relationship fragile. These anxieties are only compounded by the pressures of the European refugee crisis and wars in the Middle East.


Turkey, for its part, has pushed for the accession process to be revisited and continued expeditiously. In response, the EU has highlighted that at some point in the accession process, Chapters 23 and 24 of the acquis must be opened – these concern ‘judiciary and fundamental rights’ and ‘justice, freedom and security’ respectively. It is here that recent events in Turkey betray its chances of EU accession most.


Chapter 23 of the acquis importantly addresses the requirement that EU Member States maintain an independent and efficient judiciary, a solid legal framework, respect for fundamental human rights and adequate safeguards to the Rule of Law.  Chapter 24 furthers this by necessitating EU-wide standards for law enforcement agencies and the appropriate balance between freedoms and security. Such language is in stark contrast to the crackdown on the very judicial and legal framework that go to Chapter 23, while the excessive and arbitrary empowerment of law enforcement agencies leaves Chapter 24 at odds with the reality on the ground in Turkey.


Following the declaration of a three-month state of emergency on 20 July, the Turkish political and social landscape has been marked by swift vengeance on the part of Erdogan’s administration against its dissenters, both old and new. What began as the dismissal, arrest and detention of army officials suspected of involvement in the coup has since grown to encompass the arrest, suspension and restriction of travel of more than 50,000 Turkish state workers, academics, teachers, police officers and, most troublingly for the topic of this article, judges and prosecutors.


Overnight on 16 July alone, the Turkish state suspended 2,745 judges, citing a decision by the Supreme Board of Judges and Prosecutors. On 23 July, a government decree declared that any judges or prosecutors assessed to be national security risks would be permanently discharged and barred from practice. By 13 August, 1,684 judges and prosecutors had reportedly been arrested on suspicion of terrorism or involvement in the coup, with little evidence to substantiate these serious allegations to date.


The circumstances are cause for a multitude of concerns. The opaque handling of post-coup arrests and detention by the Turkish state renders the fate of the suspended, arrested or detained judges and prosecutors obscure. Reports have emerged of flawed charges that are in many cases not grounded in evidence of individual criminal guilt, as well as of the prevalence of implying guilt by association and the restricted access of those detained to fair legal representation, which is only exacerbated by undue political pressure on defence lawyers from the state. The elevated rank typically afforded to judges appears to be of little worth in the post-coup context.


Beyond this, the crackdown endangers the stability of the Turkish legal system, given its basis in the widespread trust of the judiciary, prosecution and defence, and the perceived legitimacy of judicial institutions. There is little indication of how and whether the detained judges and prosecutors will be replaced, or of how drastically the state of emergency will alter the Turkish legal landscape given the current lack of legislative review by the Constitutional Court or Parliament. Unfortunately, the conduct of the ‘purge’ is evoking an image of President Erdogan as a leader who is consolidating authority over the Turkish state, while dispensing of long-held standards for human rights, the Rule of Law and fair trial procedure. This has been enhanced, in part, by the seemingly arbitrary nature of law enforcement in the post-coup regime.


Broader international implications of this, as aforementioned, are substantial for Turkey. The declaration of a state of emergency put into effect Turkey’s temporary suspension of the European Convention of Human Rights (ECHR), pursuant to art. 15 of the ECHR. Whilst France has recently taken this path in light of national security threats, which poses issues of its own, it is apt to note that the ECHR mandates proportionality, consistency with other obligations under international law, and the inviolability of the right to life, prohibition of torture, prohibition of slavery and forced labour and, relevantly, the prohibition of punishment without law (art. 15, ECHR). Proportionality is certainly not a feature of the post-coup crackdown response, given the extent and nature of detention and arrest. Meanwhile, Turkey’s compliance with international law, particularly its treatment of the requirement of no punishment without law, is questionable and under scrutiny.


The EU surely has been watching these developments closely. It has already strongly criticised discussions as to the potential reinstatement of the death penalty in Turkey, intimating that doing so would end Turkey’s hopes of EU membership. Indeed, where accession is concerned, the crackdown on judges and prosecutors, and the damaging effect it has had and will have on the Rule of Law, has highlighted the fact that Turkey will struggle to gain EU agreement to open Chapters 23 and 24 of the acquis, and even more so to close them. While the dilemma over granting visa-free travel for Turkish citizens in exchange for a robust migration agreement preoccupies the EU for the present, a look further down Turkey’s road to EU membership reveals newly created obstacles that will likely be points of contention if accession discussions are to continue at all. Even if Turkey and the EU are able to agree on the comparatively simpler accession Chapters concerning freedom of movement, goods and capital, the opaque realities of Turkey’s arbitrary crackdown and wilful dismantling of key Rule of Law and democratic safeguards in the post-coup turmoil will cast a long shadow over discussions to come.


Uzma Sherieff is an Assistant Editor of the ILA Reporter.