Freedom Observer No 16

From Editor-in-Chief

Last week, two different yet meaningful decisions came out of two high courts that neatly define the current political regime in Turkey. In the lawsuit filed against the President’s action regarding Turkey’s withdrawal from the “Istanbul Convention”, the Council of State rejected the request for a “suspension of execution”. According to the Court, while the President has the authority to terminate international agreements with a decree, a lawsuit could not be filed against “the actions of the President as the head of the state that concern the best interests of the state”. Thus, the Council of State grants the President a “judicial immunity” that is not grounded in the Constitution and empowers him in preventing the implementation of an international treaty or convention that he feels uncomfortable with. In other words, the Council of State implied that “the State is incarnated in the personality of the President”.

However, the Constitutional Court does not seem to agree with the Council of State on this matter. More precisely, the Constitutional Court makes a partial exception to this “rule” in favor of the National Security Council (Milli Guvenlik Kurulu, MGK)regarding extraordinary periods. As a matter of fact, in a decision, the Constitutional Court stated that the authority to determine “those who have ‘membership’ or ‘affiliation’ to organizations, formations or groups that are determined to be operating against the national security of the state belongs to the judiciary, not the MGK, in ordinary periods. We understand from this notion that this authority belongs to the MGK in extraordinary periods. If we consider the fact that the President is the head of the MGK, in fact, not much has changed. In any case, the Supreme Court vehemently vocals that the President, indeed, is the State’s itself.

If this is the case with regard to Turkey’s political regime, then what does the new judicial package that was recently presented to the parliament mean? Is there a way to claim that the aim is to reform the judiciary, which consists of proposals that will restore and strengthen law and justice, to bring the regime closer to the universal standards of the constitutional-democratic state? As shall be explained below, if this package, with its formal and/or procedural amendment proposals, is accepted by the Parliament and implemented, it will unfortunately go no further than providing a minor improvement in the entire existing judicial system. Meanwhile, the long-awaited “judicial reform” package has been presented to the Parliament. However, given the government’s harsh attitude towards demonstrations and other events by LGBTI+ citizens last week, there is little reason to believe that the state and government really have the will to implement the constitutional principles of the rule of law and human rights. Indeed, these celebratory events, all of which were peaceful, were either banned or subjected to excessive police intervention and heavy violence. There were injuries, many people and a journalist were detained.

The deviation of the AKP-run state from universal standards of the constitutional-democratic administration is not limited to the issues of rights, law, and justice. Indeed, the hierarchical nature of the attempt to implement the “Canal Istanbul” project, which is closed to warnings and criticisms from civil society and the opposition, reflects a will that does not have even slightest concern for the principles of “good governance”, transparency and accountability.

Discussions over Canal Istanbul

Canal Istanbul, one of the issues that has been frequently discussed in the public for the past 10 months, came to the fore again with the foundation laid on Saturday, June 26. With this project, which connects the Black Sea and the Sea of Marmara, the government claims that it aims to reduce ship traffic in the Bosphorus and to create an earthquake-resistant city by promoting horizontal architecture.[1] The estimated cost of the project is approximately $15 billion.[2] President Erdoğan stated that he views Canal Istanbul as a project to save the future of Istanbul.[3]

Opposition parties, however, oppose this project on both environmental and economic grounds. CHP Istanbul Metropolitan Mayor Ekrem İmamoğlu stated that Canal Istanbul will cause substantial environmental damage to Istanbul and the Sea of Marmara, and “will cause very heavy and irreversible disasters”.[4] On the other hand, İmamoğlu stated that Canal Istanbul will cause inefficient use of public resources and stated that this project should be described as “waste”. Opposition parties also took a position that set the agenda on the issue of the Canal Istanbul debate. They claimed, when the leaders of the IYI Party and CHP came to power, that the companies that entered the Canal Istanbul tender would not be paid, and they sent warning messages to both companies and international financial institutions in this regard.[5]

Experts warn about the environmental impact of Kanal Istanbul. For example, environmental expert Prof. Dr. Mustafa Öztürk and Marine Scientist Prof. Dr. Cemal Saydam predicts that the nitrogen phosphorus load in the Sea of Marmara will increase, the oxygen ratio will decrease and the currents in the sea will be affected.[6] In addition, it is thought that it will adversely affect groundwater resources, reduce drinking water resources, destroy forest areas and agricultural lands, cause excavation pollution and create an additional population burden of 2 million in Istanbul, which reaches 20 million together with those who are unregistered.[7]

It is also clear that the Canal Istanbul project, which has attracted many criticisms for economic and scientific reasons, also does not have sufficient public support, contrary to the expectations of the government. According to the research conducted by MetroPOLL Research Company last week, only 37 percent of the participants answered that they support the construction of Canal Istanbul.[8] In a similar fashion, a previous survey conducted by Istanbul Metropolitan Municipality found that the rate of those who did not support Canal Istanbul correct was over 56 percent.[9]

The government, however, ignores the scientific reservations that reach the consensus level regarding Canal Istanbul, which, significantly, lacks public support and will place a heavy burden on public finances. This situation shows that Canal Istanbul project is exploited by the government in an instrumental manner to satisfy the immediate narrow interests of the government and companies close to it, rather than being a comprehensively thought-out project.

LGBT+ Pride Parade and the Right to Peaceful Demonstration

The 2021 Pride month celebrations in Turkey came to an end with the Pride parade held on 26 June. Pride Month events, which grew and diversified rapidly between 2003 and 2015, have been faced with obstacles by the governorship and violent police interventions for the last 6 years. Recently, the LGBT+ Pride Picnic, which was held as part of the Pride Week this year, was banned by the Istanbul- Şişli District Governor’s Office, and those who came together for the picnic faced violent police intervention. During the intervention, one person’s arm was broken and another person was detained.[10]

The Pride Parade, the highest participation event of the Pride Month, was banned this year as well with the decision taken by the Istanbul Governor’s Office the day before the march.[11] The Governor’s Office announced that the march would not be allowed on the grounds of protecting public health and morality, and preventing provocative actions and events.

These interventions by the public authorities, indeed, lack a legal ground. According to the article no. 34 of the Constitution of the Republic of Turkey and the article no. 3 of the Law on Meetings and Demonstrations “everyone has the right to organize meetings and demonstration marches without prior permission conditional upon being unarmed and attacking anyone in accordance with the provisions of this Law for certain purposes that are not considered a crime by law.” The article no. 10 of the same law regulates the obligation to officially notify the relevant governorship and district governorship of meetings and demonstration marches at least forty-eight hours before the event. The European Court of Human Rights has also stated that there can be no justification in a democratic society for the prohibition of a peaceful demonstration.[12] In the light of these regulations and the fact that the necessary applications to the relevant public authorities have been made, preventing the organization of the Pride Parade, which is a peaceful demonstration is considered by the lawyers as a violation of human rights.[13]

While bans on LGBT+-themed events and rights violations experienced by LGBT+s increase rapidly, these experiences also reveal, notably, the corruption in the rule of law and human rights, especially in the field of freedom of expression, media independence and pluralist democracy. During these shameful interventions in the peaceful demonstrations and marches, the police used disproportionate violence against demonstrators involving use rubber bullets. Not surprisingly, many demonstrators were beaten in the middle of the street and at least 35 people were detained.[14]

A citizen who expressed his discomfort with the sound bomb used by the police to disperse the demonstrators was detained on the balcony of his house during the demonstration, while a citizen who criticizes the disproportionate violence against the demonstrators who was sitting in a restaurant at that time and was not involved in the demonstration was also detained.

The police violence against journalists has been increasing rapidly after which the General Directorate of Security had issued a circular in the past month, which prohibits recording audio and video footage during protests.[15] Finally, the detention against journalist Bülent Kılıç, who was battered during the Pride Parade, was also based on the relevant circular by the authorities.[16]

While the public administration’s decisions prohibiting the use of a right directly without reminding the responsibilities of the state, disproportionate police violence against demonstrators and journalists, and increasing arbitrary arrests, violations of freedom of expression and of assembly and association severely deepen Turkey’s rule of law crisis.

The 4^th Judicial Reform Package in the Parliament

While the structural problems regarding the Turkish judiciary were getting worse, the government presented the 4th Judicial package to the parliament. The negligence of the impartiality and independence of the judiciary, and the wide interpretation of the criminal laws, especially of the terrorism legislation, as well as the violations of the basic principles of the law by all levels of the judiciary such as the legality of crimes and punishments, the prohibition of the retroactivity of penal norms, the personality of crimes and the presumption of innocence caused significant problems for the dissidents. While serious problems such as these have created a deep-rooted injustice issue, no steps are taken in the package regarding the solution of these problems. The new regulations only include some minor procedural improvements. The proposal, which was accepted by the Justice Commission, consists of 25 articles, excluding the enforcement articles. With the regulations introduced, the response time of the administration to the requests is reduced from 60 days to 30 days so that if the administration does not respond within 30 days, a lawsuit can be filed in the administrative courts. In addition, the waiting period for uncertain answers is reduced from six months to four months. Administrative courts are required to write their reasoned decisions within thirty days at the latest.

In another new regulation, willful killing, willful injury, torture and deprivation of liberty committed against the spouse will also apply in the event that the perpetrator is committed these crimes against his/her divorced spouse. Another change includes the authorization of the courts of the place where the crime was committed, as well as the courts of the victim’s residence in the crimes committed by the use of information systems, bank or credit institutions, or bank or credit cards as a tool.

There are some eye-pleasing regulations regarding the issues that are clear in the case-law of the European Court of Human Rights and the Constitutional Court regarding detention and change in the notification procedure for bringing the witness. Moreover, it is envisaged that in the decisions of judges or courts regarding the detention, the continuation of the detention or the rejection of a request for release on this matter, the evidence showing that the application of judicial control will be insufficient will be revealed in the concrete case and be included in the decision. However, these eye-pleasing regulations seem unlikely to solve the problem of unfair detention.

One regulation that can be considered as positive is that the obligation not to leave the house is considered as a reason for limiting personal freedom, and that every two days spent under this obligation should be considered as one day in the deduction of the penalty. However, it is, indeed, arguable that why two days are deducted from the penalty as one day. Regarding the judicial control measures, the obligation to review is foreseen with certain maximum duration and certain periods.

It is, however, unlikely to claim that regulations such as not including information unrelated to the crime in the indictment, deleting the recordings and listening of the detection after the acquittal decision is finalized, adding the indictment to the summons, and some procedural conveniences regarding notification and notification will make a serious contribution to solving the problems of the judiciary.

Likewise, the authority to examine the objections made against the decisions of the criminal judgeships of peace regarding arrest and judicial control is given to the judge of the criminal court of first instance in the jurisdiction. Although the criminal judgeships of peace, which were established in 2014 to give the authority to decide on protective measures only to the judges trusted by the government have completed their functions, the authority to examine objections only in terms of detention and judicial control decisions is given to the criminal judges of the first instance, however, the authority to examine objections in terms of other decisions is still left to criminal judgeship of peace. Finally, candidates for judges and lawyer trainees are given the opportunity to do internships at the Constitutional Court.

As can be seen, it is impossible to claim that the regulations introduced with the 4th Judicial Package qualify as a far-reaching reform character. It is not possible to eliminate the injustices caused by criminal proceedings with these regulations, which include partial procedural improvements.

Why is Turkey Cheap?

On June 22nd, the Turkish Statistical Institute (TURKSTAT) announced Turkey’s 2020 consumer goods and services price level index based on Eurostat data. According to the statement, Turkey’s index value is 38. The meaning of this is explained in the bulletin prepared by TURKSTAT as follows: Price level index is an indicator of purchasing power of national currencies according to currency conversion rates. If a country’s price level index is higher than 100, the country concerned is relatively “expensive” to the average of compared country group and if it is lower than 100 than it is relatively “cheap” against the same compared group.[17]

According to the list which you can see in footnote 18 below, Turkey is the cheapest country among the countries compared. In this list, the average of 27 European Union (EU) countries is considered as the base and the index value of this average is 100. Turkey is a very cheap country compared to EU countries with its index value of 38. When compared, Switzerland has the highest index value among 37 countries and this value is 170. This means: You can consume goods and services for only 38 Euros in Turkey, which you can consume in Switzerland by spending 170 Euros. With an index value of 50, North Macedonia is located one rank above Turkey in the list, and that makes Turkey a cheaper country than even Macedonia. Likewise, Romania (55), Bosnia-Herzegovina (55), Bulgaria (56) and Serbia (58) are more expensive countries than Turkey.

When we look at Turkey’s performance since 2014, we can see how the picture has changed. Let us compare Turkey with North Macedonia (formerly FYROM Macedonia) to make sense of the change in the table. In 2014 Turkey’s index value was 61, Macedonia’s 47[18]; in 2016 Turkey’s index value 60, Macedonia’s 46[19]; in 2017 Turkey’s index value 53, Macedonia’s 47[20]; in 2019 Turkey’s index value 47, Macedonia’s 50[21]. 2020 figures for Turkey is 38, and for Macedonia is 50. Turkey has become a cheaper country year after year, but the enormous decline in the Turkish lira in 2018 and 2019 has been the most important thing that has made Turkey cheaper.

What are the side effects of a country being so cheap? The first meaning of this is that it is difficult for the citizens of that country to access quality goods and services. Because the cheap prices in the country make it easier for foreigners to obtain the goods and services produced in that country, and if that country is an open country, people who produce the goods/services sell their products at a better price in the foreign market instead of selling it cheaply in the domestic market. Thus, the supply of goods and services becomes more difficult for those who earn their income in depreciating currency. In addition, imported goods are also considered very expensive by the locals.

The people who are hit hardest by a cheap country are those who make a gain by selling only their labor and do not yet have a capital. Because as the country’s currency depreciates, the real income of those who make a living by selling their labor decreases. However, the capital of those who do business with export potential tends to grow even more due to the cheapening of the products they produce. If this does not turn into technological innovation or value-added product exports, the capital obtained will be used inefficiently and this capital will not lead to an increase in the value of labor. Turkey is experiencing exactly these two situations. Both the value of labor becomes cheaper and the quality and quantity of goods and services that can be consumed in return for labor decrease. It is a fact that this stalemate cannot be resolved until Turkey reaches an optimum exchange rate and growth rate.

[1] https://www.kanalistanbul.gov.tr/tr/hersey/kanal-istanbul-projesinin-amaci

[2] https://www.bloomberg.com/news/articles/2021-05-07/turkey-s-new-canal-across-istanbul-will-cost-15-billion

[3] https://www.aa.com.tr/en/turkey/canal-istanbul-opens-new-page-in-turkey-s-development-president-erdogan/2286313

[4] https://www.sozcu.com.tr/2021/gundem/imamoglundan-kanal-istanbul-tepkisi-bir-devlet-projesi-degildir-6503180/

[5] https://www.bloomberg.com/news/articles/2021-05-09/opposition-to-cut-support-for-canal-project-if-erdogan-loses

[6] https://www.bbc.com/turkce/haberler-turkiye-57622600

[7] https://www.youtube.com/watch?v=i-uQ56sYHyA&ab_channel=BBCNewsT%C3%BCrk%C3%A7e

[8] https://tr.sputniknews.com/turkiye/202106281044833361-metropoll-anketi-katilimcilarin-yuzde-486si-kanal-istanbulun-yapilmasini-dogru-bulmuyorum-dedi/

[9] https://www.cumhuriyet.com.tr/haber/imamoglu-anket-sonucunu-acikladi-iste-kanal-istanbula-karsi-olanlarin-orani-1716259

[10] https://kaosgl.org/en/single-news/police-attacked-istanbul-lgbti-pride-picnic

[11] https://www.washingtonpost.com/world/2021/06/26/istanbul-pride/

[12] ALEKSEYEV v. RUSSIA, Application no. 4916/07, 25924/08 and 14599/09