TURKEY'S NATIONALISTIC JUDICIARY AN OBSTACLE TO

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 002731

SIPDIS

SIPDIS

E.O. 12958: DECL: 11/02/2017
TAGS: PGOV PHUM PREL OSCE TU
SUBJECT: TURKEY'S NATIONALISTIC JUDICIARY AN OBSTACLE TO
REFORM

REF: A. ANKARA 404

B. ANKARA 1835

C. ISTANBUL 0957

D. ANKARA 2412

E. 06 ANKARA 3772

Classified By: Political Counselor Janice G. Weiner, reasons 1.4(b),(d)


1. (C) Summary: A diverse array of legal experts agree the
judiciary (judges and prosecutors) has been a major force in
Turkey's failure to fully implement legal reforms related to
its EU harmonization effort. Contacts from academia, private
practice, government, and civil society told us that, though
Turkey has made tremendous strides toward harmonization of
its laws with EU standards, Turkey's judicial establishment
remains an impediment to political and human rights reform.
While there is a small group of progressive, reform-minded
attorneys, the bulk of Turkey's judicial establishment,
reared on deep-rooted Kemalist ideas of national integrity
and Turkish identity, is reluctant to enact the wholesale
changes urged by the EU and sought by less traditional
sectors of Turkish society. Continued training and
international oversight will propel the reform process, but
the real challenge will be changing the judiciary's
entrenched mindset. End summary.

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Turkey Struggles to Implement Legal Reforms
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2. (C) Prior to opening EU accession negotiations in 2005,
Turkey undertook a campaign of significant legal reforms.
Through several constitutional amendments and an overhaul of
the criminal and civil codes, the GOT outlawed the death
penalty and torture, decreased restrictions on freedom of
expression, granted criminal defendants greater due process
rights, gave men and women equal rights, and broadened the
rights of religious minorities. Sema Kilicer, a human right
expert in the EU Commission's Ankara office, told us the
judicial establishment has struggled to implement these
reforms and in many cases has outright blocked them. Though
incidents of egregious human rights abuses, such as torture,
had dramatically declined since the 1990s, courts propagated
a culture of impunity by doling out lenient sentences in
cases of abuse. Kilicer believes that the judiciary also is
the driving force behind continuing prosecutions of
non-violent criticism of state policies on secularism, Kurds,
the military, and state-sanctioned interpretations of history.

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Nationalist Judiciary Impeding Progress
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3. (C) Yusuf Alatas, former Human Rights Association (HRA)
President and a practicing attorney, told us there are two
camps in Turkey's legal establishment of judges, prosecutors,
and Ministry of Justice officials: enlightened reformers and
conservative nationalists. Reformers, a relatively small
group, promote the rule of law and protection of civil
liberties. Nationalists, the overwhelming majority, continue
to hold pre-reform ideas about defending national integrity,
governmental institutions, and Turkish identity. According
to Alatas, they see most reforms as a threat to the
fundamental nature of the Turkish Republic, and therefore
favor restrictive legal interpretations of new laws. He
pointed out that prosecutors and judges come from similar
socio-economic backgrounds, receive their legal training
together, are housed together once assigned to regional
positions, and are reared on secular Kemalist philosophy.
This core, accustomed to legal changes proceeding piecemeal,
has vehemently opposed the wholesale legal changes that
curbed the role of the military in the justice system and
fundamentally revised the penal code.


4. (C) Constitutional law professor Ergun Ozbudun, who
chaired an experts team that drafted constitutional revisions
for the ruling Justice and Development Party (AKP),
attributes the problem to Turkey's "immature democracy."
Ozbudun believes Turkey's justice system has begun a long,
slow evolution that ultimately will change a legal mindset
still "entrenched in the past." He said the backward mindset

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is epitomized by a group of ultranationalist private
attorneys who doggedly push prosecutors to investigate
statements that allegedly insult "Turkishness." Under
Turkish law, prosecutors are obliged to investigate the
charges, Ozbudun explained; in the current nationalistic
atmosphere, many prosecutors go on to file indictments. Once
an indictment is filed, many judges have used the "partie
civile" legal doctrine to allow such private attorneys to
join a case as a third party, effectively giving them broad
powers to name and question witnesses and appeal rulings to a
higher court. Ozbudun does not see any quick fix to the
problem. Legal ambiguities allow judges to interpret some
laws at will, and malicious prosecution is difficult to
prove. Ozbudun predicts changing the mindset of prosecutors
and judges will be a slow and difficult process.

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One Kafka-esque Example
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5. (C) The saga of the trial against Baskin Oran, a retired
Ankara University professor known for his outspoken views on
human rights (refs A, B),epitomizes the judiciary's
failings. According to Oran, Turkey's judiciary is the
single largest obstacle to human rights reform in the
country. Oran described the latest machinations in the
"Kafka-esque" case against him, which began in 2004 when Oran
and a colleague were prosecuted for inciting hatred and
denigrating "Turkishness" by recommending in a GOT-solicited
report that the government expand the rights of Turkey's
minorities. The trial court acquitted Oran in 2006 after he
delivered an impassioned defense that demonstrated the case
had no legal merit. The Court of Cassation (COC) overturned
the acquittal in July 2007. The COC Chief Prosecutor
disagreed with that decision, and took the extraordinary
measure of sending the case to the COC's General Assembly of
Penal Chambers for reconsideration. The General Assembly has
not yet determined whether to reinstate the trial court's
acquittal or remand the case for a retrial.


6. (C) Initially, Oran said, he naively saw the GOT-solicited
report as merely a 7-page restatement of well-settled
international principles on minorities. But as the
prosecution proceeded, he realized he had deeply offended the
judicial establishment, which sees its ultimate duty as
"defending Turkey." Oran contends the "baseless" legal case
against him has morphed into a "purely political matter"
where the judges feel they must convict him to demonstrate
their nationalist bona fides. Oran said his friend,
Constitutional Court judge Osman Can, was one of the few
"bold, reform-minded attorneys who won't be silenced." But,
in his opinion, these few face an uphill battle against the
"dangerous" individuals who dominate the judiciary.

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Continued Training Helps Propel Reform Process
-------------- -


7. (SBU) Ankara Bar Association President Vedat Ahsen Cosar
cautioned us to not lose sight of Turkey's immense progress
since 2002 stemming from EU harmonization efforts. He, too,
is frustrated by continuing problems such as excessively long
trials, limitations on free expression, and occasional
maltreatment of detainees. But EU-sponsored training of
lawyers, judges, and police in such areas as the new penal
code, human rights principles and modern procedural standards
has lowered incidences of maltreatment, improved access to
defense counsel, improved court administration, helped
achieve more fair treatment under the law, and improved
investigative techniques. Cosar is confident that continued
training will lead to further improvements in the justice
system.


8. (SBU) EU Commission legal expert Nur Onsoy agreed that
continued training is critical but believes large
institutional deficiencies persist. According to Onsoy, the
EU has increased its funding to the Turkish judiciary -- from
409 million euros in 2005 to 485 million euros in 2006 --
with plans to increase to 865 million euros by the end of

2007. Much of the funding has targeted modernizing
information technology, resulting in increased efficiency of

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court proceedings. Onsoy said a key remaining problem is
executive interference in the independence of the judiciary
and unequal treatment of defense counsel. Through its links
to the High Council of Judges and public prosecutors, the
executive can influence judicial training, appointment,
promotion, and financing. It can also influence which judges
and prosecutors are assigned to sensitive trials. Another
major shortcoming is that Turkish prosecutors enjoy a status
very close to that of judges, both functionally and
symbolically, effectively placing defense counsel at a
disadvantage. Onsoy believes that the EU, USG, and other
international actors must press Turkey to make these
institutional changes that continue to thwart its judicial
modernization.


9. (C) Comment: The judicial establishment's
behind-the-scenes maneuvering, as well as not-so-subtle
attempts to thwart change, often overshadow the substantial
legal reforms that have occurred. Examples of judicial
interference continue, including the legal harassment of
pro-Kurdish Democratic Society Party (DTP) members (ref D);
the firing and de-barring of the public prosecutor who
indicted then-CHOD General Buyukanit following the Semdinli
bombing (ref E); and most recently the allegedly tainted
investigation into the murder of Hrant Dink (ref F),seen by
international observers as a litmus test for whether the
Turkish judicial process can fairly and effectively
investigate and prosecute those responsible in a case imbued
with nationalistic overtones. The judiciary's staunchly
traditional Kemalist roots and the current nationalistic
atmosphere suggest a change in mindset as well as practice
may take years. End comment.

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