The AKP government of Prime Minister Erdoğan has effectively decreased the once unlimited power of the army. The power of the judiciary was strengthened. But now that power has too strong a grip on society.

Why did you visit wounded demonstrators in hospital? Why did you give interviews to so many TV and radio stations? Why did you attend that press conference? Why did you help get bodies of PKK members back to their families? ‘All legal activities’, says human rights lawyer Reyhan Yalcindag, based in the southeastern city of Diyarbakir, ‘but Kurdish politicians and activists are being questioned and jailed for it.’

And not just a few Kurdish politicians and activists were arrested and jailed, but a total of about 4,000 since April 2009. And that number is still rising, because all over Turkey new suspects are still being arrested in what has become known as the ‘KCK trials’. The KCK is an umbrella organisation of Kurdish groups,  including the PKK, which is considered a terrorist organisation by Turkey, the EU and the United States. By arresting peaceful, democratically elected politicians and activists under the KCK flag, practicing democratic rights suddenly becomes a crime. Lawyer Yalcindag: ‘And so you can end up in a cell for giving out a press release, for participating in a demonstration or for shouting a slogan.’

Anti-democratic network

Criticism of the firm grip of the judicial power over several opposition groups in Turkey is increasing. It happened gradually. At first, it seemed the increasing influence of judges and prosecutors initiated by the AKP government of PM Erdoğan, which came to office in 2002, would be beneficial to democracy. The judicial power for example started to deal with the ‘deep state’, an anti-democratic network of prominent figures in for example the bureaucracy, army, secret service and the mafia. The unlimited authority and privileges of the army were curtailed, military courts for civilians were abolished and for certain crimes army personnel now have to appear before a civilian judge.

Maya Arakon, sociologist and political scientist and until recently an assistant professor at Yeditepe University in Istanbul, used to have faith in the way the army was dealt with by the AKP: ‘The army has always controlled the country since the foundation of the republic in 1923’, she says. ‘So when the trials against the ‘deep state’ started, I and many others were happy with that. It is not wrong for the government to have more power than the army. But then that power has to be used in the right way for the right goal. It should benefit the people, who should get more rights and freedoms. That is not happening now, even though the government insists democratisation is the goal of their policies.

The power of judges and prosecutors is turning itself against democracy now, claims Arakon: ‘The AKP uses judges and prosecutors to silence opponents. The KCK trials are an example of that. The Kurdish party BDP is the biggest rival of the AKP in the Kurdish southeast of Turkey.’ Conspiracy thinking? The first arrests in the KCK case were at the beginning of April 2009. The local elections, which the Kurdish party won convincingly, were held at the end of March 2009.

An odd alliance

But not only Kurdish politicians and activists are victims of the ever tighter grip that the judiciary has on society. Even the once so powerful army doesn’t escape. An odd alliance: in the nineties the army was so powerful that they could ruthlessly and without fear of punishment get rid of the PKK or anybody they even suspected of having sympathy for the separatist movement, but now they are in a way in the same boat as the Kurdish activists. They are no longer hand and glove with the government, like before, but have become opponents. And they taste defeat.

Part of the trials against those involved in the ‘deep state’ is the so called Balyoz case. That case is about a group of high-ranking, partly retired army men who have allegedly conspired against the AKP government. They had spectacular plans: they would first cause great unrest in society, for example by bombing a huge mosque in Istanbul during Friday prayer and provoke a military confrontation with Greece, and then topple the government.

Lawyer Celal Ülgen, who represents main suspect Cetin Dogan and the other ‘big fish’ Dursun Cicek (once head of the military units who decapitated Kurds in the nineties), doesn’t believe any of it. He opens his Apple computer and says: ‘Now I’m going to convince you in half an hour that the whole case is fake.’

Copied signatures, lost CD’s

He starts a presentation and shows how evidence has been doctored. It’s about copied signatures, about lost CD’s, about dates that don’t make sense. It’s too complicated to explain it all here, but even some people who are not automatically on the army’s side are becoming convinced that the evidence in the Balyoz case isn’t clean.

The problem for both the KCK and Balyoz suspects is that they are actors in a pretty polarized society and they don’t have many allies outside their own circles. Balyozlawyer Celal Ülgen often hears it said that it wouldn’t be the first time that an elected government in Turkey was toppled by the army, and that it is for that reason not unthinkable that the army, which has a deep hatred and suspicion of the AKP, could have such plans again. Ülgen: ‘Many people think like that, and it makes it more difficult to convince people the Balyoz case is based on doctored evidence.’

And every activist Kurd automatically has, according to many Turks, a PKK odour, whether he or she takes up arms or supports the Kurdish struggle as a member of Parliament or mayor. There is sympathy among human rights activists and liberal intellectuals, but in Turkey that’s only a very small group.

Secret material

Doctored evidence, unlawful evidence, indictments for practising democratic rights, it would be less bad if at least the suspects could rely on the independence of the judges in their cases. But they don’t rely on that. They have little reason to. Already during the trials it turns out that (internationally) respected legal norms are not being followed and that judges don’t seem to care. Norms such as the access of lawyers to evidence. Both Celal Ülgen and Reyhan Yalcindag don’t get access to evidence, exactly the evidence that they think has been fabricated or consider unlawful.

KCK-lawyer Reyhan Yalcindag: ‘Private phone calls have been tapped, against all international legal regulations. These taps are being used as evidence, but the lawyers don’t have access to them because it’s considered ‘secret material.’ Balyozlawyer Celal Ülgen: ‘I want to inspect documents about a certain CD, but I’m not allowed to. Consequently I can’t defend my clients properly.’

Another example: the very long pre-trial detentions. Some of the suspects had been in remand for years, sometimes without indictment or without having any information on when the trial would start, continue or finish. That’s not the case for suspects in other high profile trials in which the suspects are close to the government, as became painfully clear in October. In a huge fraud case against board members of Deniz Feneri Dernegi, a charity organisation close to the government, the judges decided to release all suspects from remand.

Destruction of Kurdish political life

‘Because of these sorts of cases, the public’s faith in the judiciary decreases’, says sociologist and political scientist Maya Arakon. ‘People don’t believe anymore that there is justice, and that is very dangerous, because they will take justice into their own hands. Of course you can wonder if things were better before. No, they were not, but that doesn’t justify what is happening now. The judicial power protects the interests of the state, and nowadays of the government, instead of working for civil rights and fundamental freedoms that should protect civilians against the state and the government.’

For Kurdish politicians, she says, it goes even further than that: ‘In their view, these developments are part of the destruction of Kurdish political life in Turkey, and I can understand that very well. They can hardly do anything else these days than defend themselves against all these arrests.’

‘You can’t solve problems with legislation only’

The European Union looks at it with concern, as becomes clear in the progress report published in mid-October. The judicial shortcomings in both the Balyoz case and the KCK trials are mentioned explicitly. It’s all rather sour: the changes that were pushed through under pressure from the EU, and that were meant to serve democracy, look good on paper but, as happens more often in Turkey, something goes seriously wrong in their implementation. EU MP and Turkey rapporteur Ria Oomen-Ruijten: ‘Indeed, you can’t solve problems with legislation only. That’s why the EU invests in the training of judges and prosecutors.’

But what if they are pressured to start the ‘right’ prosecutions and give the ‘right’ verdicts? And what if judges and prosecutors of important cases are being replaced at strategic moments, with an outcome pleasing the government? Oomen-Ruijten: ‘It’s true, sometimes strange things happen. But that’s of course also why we monitor it all. There is no proof that the government directly interferes. Our starting point still is that Turkey is a civilized nation.’

But sociologist and political scientist Maya Arakon doesn’t expect much from the EU:  ‘Europe has its own problems. They now and then send a delegate this way, but their interest in Turkey isn’t sincere.’ Oomen-Ruijten, one of those delegates, strongly disagrees: ‘My report on Turkey and the EU, which will be published halfway mid-November, will be about interdependence in several areas, from economy to the fight against terrorism. But human rights, that’s another subject, more important than anything else. Human rights, the rule of law, those are strict Copenhagen criteria and Turkey has to comply with them.’

A huge paradox

Does Maya Arakon think the tide will turn within a reasonable time? ‘This is Turkey, she sighs. ‘Everything can change in a day and nothing can change in years. I don’t know, but I don’t have much hope.’ The AKP is firmly in charge: the party won the elections last June with a bigger majority than ever before. Most Turks are not directly harmed by the developments in the judiciary and don’t feel very involved in huge, elusive court cases against Kurds and military personnel. They vote based on changes in their own lives, or, in other words, based on a growing wealth and a growing economy.

Balyozlawyer Celal Ülgen clings to Europe. That’s also why he talks to the European press. ‘The consciousness about this matter has to grow in Europe’, he says. ‘Then maybe Europe can pressure Turkey more.’ A huge paradox, because it’s exactly EU pressure that helped erode the power of the army in the last couple of years. An even bigger paradox is that the hope of the Balyoz suspects, military men who still fight bitterly against the PKK, is focused on the solution of the Kurdish question. Ülgen: ‘They are terrorists, and my clients are also jailed based on terrorism laws. If there is ever to be an amnesty law for PKK members, there is a good chance that same law will free my clients too.’ He considers that chance bigger than the chance a judge will judge fair.