For the first time in Türkiye’s history, a citizen is giving the judiciary a report card based on its services.
This outcome finds its roots in seeds that I sowed back in 2014, in the report Quality Demand and Quality Elements in Judicial Services, the product of a four-year study I conducted while serving as the chairman of the Judicial Reform Working Group, This study, peer-reviewed and peer-approved and published by TÜSİAD (the Turkish Industrialists’ and Businessmen’s Association), set out the business world’s demand for quality services from the judiciary.
Thus the seeds were sown in 2014, and the first sprouts will appear in 2023.
With this judiciary rationing, I assess the judiciary’s services—of which judges, prosecutors and attorneys are crucial components—from the viewpoint of the general public and the business community, who are its recipients, addressees, demanders, victims, defendants and complainants. I hope that this will mark the beginning of an approach to evaluating judicial services from the perspective of the service recipients—the citizens—as opposed to that of the service providers, as we are accustomed to.
Based on the news, the articles I have read, the discussions at meetings and the professional knowledge I have obtained, I assess and grade the performance of the judiciary in 2022 in accordance with the quality elements listed in the book Turkish Judicial Reform from A to Z, again published by TÜSİAD.
I’m hoping that this year-end evaluation, which I make based on intuition and as one not known for giving out artificially high grades, will be a good start for the judiciary.
Compliance with fundamental universal values and principles
I rate the judiciary as 0 out of 10 for the principle of independence, because the 13 members of the Council of Judges and Prosecutors (CJP) are chosen by the government and politicians, and as 1 out of 10 for the principle of impartiality, because judges and prosecutors are chosen by the Ministry of Justice and the degree of impartiality depends on the whim and conscience of judicial officials, who lack support. In fact I should give 0, but I give a point because members of the judiciary are highly conscientious about living up to their values.
CJP decisions are not subject to judicial review and some of its contentious appointment decisions cannot be audited; hence, I give 1 out of 10 for accountability and transparency—the single point being appropriate because there is a chance to appeal against decisions within the CJP itself. I give 3 out of 10 for the principles of competence, qualification, diligence, effectiveness and efficiency, predictability, accuracy and foreseeability. This score is deserved by members of the judiciary, who do not compromise on their selfless work despite all kinds of difficulties.
I give 5 points out of 10 for honesty and integrity – with difficulty, because the judiciary deserves a high score in this area thanks to the honesty and high levels of conscientiousness of its members. But some members are involved in drug trafficking, some may make decisions out of political motives, and some do not abide by rulings of the European Court of Human Rights (ECHR) and Constitutional Court, which goes against fundamental ethical principles.
On the principle of equal treatment and non-discrimination, I give a score of 4 out of 10 because although everyone can access the courts, the right to justice can be abused, as it has where decisions have been heavily criticized in cases involving politics, bias, and crimes against women and children in particular, as well as where the committing of crimes has been covered up under the guise of religious beliefs
I give a final overall score of 2.3 out of 10 in this category.
Service tailored to public needs
I give 3 points out of 10 for family law, especially given that, among other reasons, divorce cases take years; alimony decisions are incompatible with real life; the sexual, emotional and psychological rights of spouses are restricted and they are tormented by the postponing of a divorce decision until discussions about compensation and division of property are concluded; there is a lack of effective results in cases of abuse of trust, protection of secrets, unfair competition, industrial espionage and similar cases; disputed rights are lost due to delay; and the costs and process in labor law cases restrict weak workers from seeking their rights.
Knowledge, experience and competence
I give the judiciary members a score of 3 out of 10 due to their extremely limited knowledge of the real-world issues they must decide on, such as judges without the required scientific and technical expertise hearing patent cases or those with superficial knowledge hearing cases involving financial transactions; and, more importantly, the due to the fact that the term “child judges” has entered our lexicon.
Efficiency and performance
Due to the lack of a standardized career path for judges; the subjective selection of examining judges at the Court of Cassation, the Council of State, the Constitutional Court and the Ministry of Justice; the confidentiality of their reports; and the fact that performance evaluation is based on quantity rather than quality of service, I give 3 out of 10 points for efficiency and performance.
Confusion is caused by the introduction of spurious types of lawsuits, such as declaratory, performance, partial performance and indefinite debt lawsuits. These limit the citizen’s right to sue, expose them to unnecessary risk, and needlessly complicate and complicate proceedings, when a reasonable fee policy could have aimed to generate much more fee revenue to the treasury—and could have succeeded in doing so. Hence, I give 3 out of 10 points in this category for the time wasted trying to find the right one among the complex types of cases that are part of the judicial process, instead of handling the efficiency issue and resolving the dispute.
Uncovering the solid truth
I give a score of 3 out of 10 in this category for the lack of integrity in proceedings; the fact that lying is seen as a right of defense; the widespread restriction of the right and authority of lawyers to uncover the material truth quickly and in detail; and the fact that court decisions are not made at a single hearing after a thorough discussion of the evidence but are based on the biased perceptions of the judges and the groping summaries of so-called experts, and thus decisions are not in line with the material facts.
Equality of arms
I give 2 out of 10 in this category because of the compromising of the exercise of justice, and I give this score reluctantly, due to the fact that disputing parties in cases are not fully equalized in terms of their financial means; that the prosecutors share the same bench and file with the judge; that those who have financial power can influence the judge’s opinion by getting an opinion from the judge’s professors, who hear the case by paying excessive amounts; and that the perceptions of law formed in the sterile environment of academicians, who are directed to act as experts in court but who are ignorant of real life, are effective in court decisions.
Reasonable and Fair Trial
I give a score of 2 out of 10 in this category because the principle of trial within a reasonable time is violated in almost all cases; 77% of applications to the Constitutional Court and more than 60% of violation decisions are related to violation of the right to a fair trial in terms of duration; judges are appointed without concluding the cases they are hearing, thus violating the principle of natural judge; in cases where a new judge comes in, the old minutes are recorded as read when it is impossible to reread them; and many similar reasons.
I give 2 points out of 10 here due to the fact that there is no established standard for advances on trial expenses on the one hand or expert opinion fees on the other; a significant proportion of lawyers do not have sufficient job and income opportunities; the fees foreseen for compulsory defense services to be paid by the state are far below the minimum tariff; and there are problems in paying these fees, which are an important source of income for young lawyers, and in taxation.
Effective communication between the judiciary and the public
In this category, which jurists from Samsun suggested be added to the quality elements, there has been a great deal of disruption; communication between the major components of the judiciary has all but ceased, and polarization has taken place. I give 2 points out of 10 for the weakness of the justifications for the reasoning behind decisions; confidentiality and privacy decisions that restrict the public’s right to receive information and to criticize; the fact that even the names of judges who have been severely criticized by the public for some of their controversial decisions cannot be learned; and the fact that most decisions of the CJP are unjustified or insufficiently justified, and there is no accountability inherent to them.
Is this a good start to the resolution of a critical problem?
The Republic of Türkiye is entering its second century, and the judiciary is the most significant issue that has not yet been resolved. Prior to the 1970s, when the economy was relatively small and legal procedures were relatively straightforward, the judiciary enjoyed relative success thanks to its relatively high level of adequate and competent human resources, and the 1961 Constitution granted the judiciary full independence and strong guarantees for judges. But the judiciary lost its independence and guarantees in the 1970s, as a result of internal dependencies within the institution and the emergence of a privileged but untouchable caste of judges. It became reliant on the executive through the minister of justice and the undersecretary of justice, and unable to render decisions without their input.
Since the 1980s, the judiciary has not provided services in line with the needs of the people, and it continues to perform poorly in the services it offers. This is because the judiciary’s resources—which were neglected in the 1970s when economic problems peaked, inflation was out of control and the economy was vulnerable to foreign markets with the January 1980 economic “stability measures” of the Demirel government—were not later restored to the necessary levels in the context of a rapidly growing economy.
I kindly request that the CJP, the Presidential Legal Policy Council, the Ministry of Justice and the legal representatives of the opposition parties use a small portion of their public funds to start a tradition of polling the public on this matter in order to get their input on the necessary judicial reforms and enhancements.
I wish each and every one of my coworkers a healthy, prosperous, happy and successful year in which they will begin to gain respect through judicial independence, accountability and quality services; in which the radiance in their eyes will grow; and in which their hearts will beat with sympathy for the human tragedies in the files.