The main consequence of the politicization of the judiciary: Corruption

The judiciary is defined as the authority of independent courts to definitively resolve and adjudicate legal disputes and allegations of illegality. In this sense, courts exercising judicial power must be independent in nature.

Indeed, according to Article 9 of our Constitution, “Judicial power is exercised by independent and impartial courts on behalf of the Turkish Nation.” Furthermore, the independence of the courts is regulated in Article 138 of our Constitution. Article 6 of the European Convention on Human Rights stipulates that everyone has the right to have their case heard by an independent and impartial tribunal.

In accordance with the principle of the unity of jurisdiction, judicial power is of a public nature. To put it more clearly, judicial power belongs to everyone and to no one. If powerful individuals in a country demand a privileged trial for themselves, this would mean the division of state sovereignty and the judiciary.

What is important in the unity of jurisdiction is independence.

The concept of the rule of law lies at the foundation of modern human rights doctrine. The fundamental element of the rule of law is judicial independence as an extension of the separation of powers. However, the transformation of the principle of separation of powers has eliminated the distinction between the legislative and executive branches. The inclusion of legislative activities within the executive has increased the role and importance of the judiciary in limiting the power of the government.

Thus, political pressure on the independence of the judiciary is also increasing. The greatest political pressure comes from the executive branch due to its dominance over the legislative body. This situation has been conceptualized as the politicization of the judiciary.

We regret to see that, along with the politicization of the judiciary in Turkey, its independence is disappearing day by day. The judiciary has become a tool for political goals. At the root of this problem is the role of the political power in the appointment of judges and prosecutors.

On the other hand, it is necessary to mention the influence of the executive on the structure of the Council of Judges and Prosecutors (HSK). However, universally, one of the most important conditions for judicial independence is the independence of the supreme judicial council, namely the Council of Judges and Prosecutors. Supreme judicial councils were born out of the need to effectively implement the principle of judicial independence, which is one of the most important elements of the 'rule of law'. If the judiciary is to fulfill its function of ensuring that the legislative and executive organs act in accordance with the law, the HSK must be independent.

In Turkey, however, HSK members are effectively determined entirely by the executive branch, and 12 of the 15 members of the Constitutional Court are also appointed by the partisan president. In such a system, it is impossible to speak of judicial independence in that country.

This being the case, when the judiciary is instrumentalized and moves away from its primary goal of justice and law to become politicized, corruption essentially occurs within the judiciary. We see the most current example of this situation in the complaint letter written by Istanbul Anatolian Chief Public Prosecutor İsmail Uçar to the HSK on October 6, 2023. Chief Public Prosecutor İsmail Uçar had requested that necessary action be taken regarding a complaint containing allegations of “bribery, influence peddling, mediation, and irregularities.” The content of the complaint also mentioned the names of certain individuals performing judicial duties, alleging that many serious crimes, primarily bribery, had been committed.

On October 13, 2023, journalist-writer Timur Soykan published the news “The Bribery Wheel in the Courthouse” in the BirGün newspaper. With this report, Soykan addressed Chief Public Prosecutor İsmail Uçar’s complaint letter.

However, an access ban was later issued by the Istanbul 1st Criminal Judgeship of Peace for Soykan’s report and related news. The Istanbul Bar Association objected to this decision on the grounds that “The inability to access news and content regarding issues that directly concern the judiciary also violates freedom of expression.”

Furthermore, Prof. İzzet Özgenç, one of the two people who prepared the Turkish Penal Code that entered into force in 2005, stated that the allegations in the Chief Public Prosecutor’s complaint letter were in the nature of a criminal complaint. He interpreted the access ban decision as, “It is not a decision taken with legal considerations; this decision is aimed at saving face.” On the other hand, there is another important element that should not be forgotten. One of the most important principles in the judiciary is the principle of “transparency.” In this sense, as can be seen in the first principle of the Istanbul Declaration on Transparency in the Judicial Process, it is stated that “As a fundamental principle, trials should be held in public.” In this sense, the access ban decision also contradicts the principle of transparency.

As can be seen, the politicization of the judiciary in Turkey is actually a problem of justice. With the complaint letter of Chief Public Prosecutor İsmail Uçar regarding corruption in the judiciary entering the public agenda, a proposal was submitted by the CHP to the Grand National Assembly of Turkey (TBMM) to prioritize the motion for an investigation into the problems of the judiciary. However, this proposal was rejected by AKP and MHP deputies. This is very significant. The executive branch’s rejection of the investigation into corruption allegations occurring within the judicial body is actually a snapshot of how politicized the judiciary has become.

Judicial independence in Turkey is problematic. This problem must be addressed immediately. We must return to universal principles of justice. Otherwise, as Chief Public Prosecutor İsmail Uçar said, “Yet justice was the foundation of the state. If there is no justice, states were doomed to be wiped off the stage of history, and society was decaying,” we will continue to watch the decay of society.