Hopes for judicial reform dashed by Erdoğan’s appointment to top court

As Turkish Foreign Minister Mevlüt Çavuşoğlu was in Brussels last week talking to European Union officials about opening a new chapter in bilateral relations, he repeatedly emphasised that Turkey would soon be announcing a package of judicial and human rights reforms.

But back at home, President Recep Tayyip Erdoğan had already pulled a move effectively negating any such hope.

On Jan. 23, the president appointed İrfan Fidan, the former Chief Public Prosecutor of Istanbul, known for his close ties to the government, as a member of the Constitutional Court.

The appointment is causing concern for the threat facing Turkey’s judiciary at the highest level, with government-linked officials taking increasing control over critical cases.

As soon as the appointment was made public in the Official Gazette, the first reaction came from Turkey’s main opposition Republican People’s Party (CHP). CHP leader Kemal Kılıçdaroğlu’s chief advisor Erdoğan Toprak tweeted that the midnight move by Erdoğan had erased any trust the people of Turkey had in the judiciary.

“But there is no room for letting up. Rights, Judiciary, Justice,’’ Toprak added.

CHP member of the parliament’s Constitution and Justice Commission Süleyman Bülbül said Erdoğan’s Justice and Development Party (AKP) was speaking about judicial reforms while carrying out a judicial coup.

“Up until now, three packages were announced claiming judicial reforms. And each time, things got progressively worse for the judiciary,’’ he said. “We had no hopes that the promise of judicial reform would be fulfilled… and it is not surprising at all that the president would make such an appointment.’’

Fidan has yet to officially mark an hour as a judge on the Supreme Court of Appeals, let alone sign off a decision, destroying a 153-year tradition, Bülbül added.

Meanwhile, Burhan Üstün, appointed to the Constitutional Court by former President Abdullah Gül, retired on Jan. 10. An election to replace him should have been held two months ago, and the Presidency of the Supreme Court of Appeals said in November that the vote would be held on Dec. 2.

It was precisely then that the Council of Judges and Prosecutors (HSK) appointed 11 new members to the court, including Fidan. Following this move, without even knowing which chamber of the court Fidan would assume responsibility for, the court’s presidency decided to postpone the Constitutional Court elections to Dec. 19, citing the COVID-19 pandemic.

Celil Çelik, a senior CHP lawyer, said this development took place on the orders of Erdoğan, and that some members of the Supreme Court were forced to withdraw their candidacies to clear the way for Fidan.

Çelik was proved right. In the Dec. 19 vote, Fidan, who had not even formally begun his post at the Supreme Court, headed the list of three candidates for which the 107 members cast their ballots.

The list was then forwarded to Erdoğan, who signed off the decision to assign Fidan as a member of the Constitutional Court on Jan. 23, once again demonstrating his lack of concern for growing criticism about judicial independence, impartiality and politicisation.

In his previous role, Fidan oversaw high-profile including the Selam Tevhid, Sledgehammer, Gezi Park, and MIT trucks cases, as well as prosecutions against journalists Can Dündar and Erdem Gül, and businessman Osman Kavala.

Fidan has also been behind the most comprehensive investigations against the Gülen movement, whose members are accused of instigating the July 2016 coup attempt.

But Constitutional Court rules mean he will not sit on cases in which he was involved as a prosecutor.

Fidan’s appointment has also sparked discussion on the balance of the court’s members. Of the 15 members of the Constitutional Court, Fidan is the seventh to be directly appointed by Erdoğan, replacing one of six members appointed by former President Gül.

The court is currently headed by Zühtü Arslan, appointed by Gül in 2012. The other members appointed by the former president are deputy-chair Hasan Tahsin Gürcan, Engin Yıldırım, Hicabı Dursun, Mümtaz Akıncı, Muammer Topal and Muhammed Emin Kuz.

Two previous members appointed by Gül were arrested for membership of the Gülen movement and replaced by Erdoğan appointees Recai Akyel and Yusuf Hakyemez.

This has left the balance between Erdoğan and Gül appointments as seven to eight respectively. But this could change at any moment.

The significance of the court’s makeup was seen in the recent high-profile Kavala case, when the court concluded his detention on espionage charges was lawful on Dec. 29.

The court ruled seven to eight that businessman Kavala’s rights had not been violated, with one judge interrupting his vacation to vote against Kavala. If he had not done so, there would have been a split of seven votes each, with chairman Arslan given the final say, likely resulting in a decision favouring Kavala.

It should not be a surprise if in upcoming cases Gül-appointed members seek to reposition themselves by voting in favour of the government. Moreover, there are eyebrow-raising claims that Fidan will be looking to influence his fellow judges.

According to constitutional lawyer Metin Günday, the government’s claims of judicial reform are incompatible with appointing Fidan through highly questionable means. “In recent times, many of the critical cases in the Constitutional Court were already being deliberated on by a narrow margin.”

From now on, every vote cast by Fidan will be followed closely by political circles, particularly of the opposition. Fidan, who is 52-years-old, is set to serve in the court until 2034.