INSTITUTE OF STRATEGIC THINKING (SDE)
 
                                     THE RULE OF LAW AND JUDICIARY CONFERENCE DURING DEMOCRATIZATION
 
                                                                                       THE FINAL DECLARATION
 
Turkey’s efforts to become modern for 200 years and to integrate with the civilized world and democratic background require an urgent and comprehensive reform. And the judiciary reform is the most important part of the reform and it is a prerequisite for it. The judicial system’s efforts to preserve the system, perspective, and enforcements of the last century in the 21st century are both anachronic and a barrier for the reform.  However, not only the democratization demands as a result of the social, economic, and political dynamics, but also the international legal requisitions about the judicial system require crossing these borders that have no basis of legitimacy.
 
With the vision of forming the system of the rule of law with all the institutions and rules, the Institute of Strategic Thinking (SDE) held a conference on the whole judicial system and senior institutions by bringing prominent law and politics scholars and judges, prosecutors, and lawyers in jurisdiction in Turkey together on February 25 and 26, 2010.
 
At the conference, it was stated that the biggest barrier to put the target reforms of the last 10 years into practice in Turkey is the judicial reform and it was also emphasized that it was a necessity to give priority to the judicial amendments in order to put the aforesaid reforms into practice without interruption.
 
At the conference the judicial problems in Turkey in terms of organization, mentality, and process were handled in detail. The ideological and status quoist visions of the majority of judges in senior positions on individual-state relations and political issues were introduced with examples. And therefore it was mentioned that it became a barrier for the human rights and democratic principles to be put into practice. Moreover, it was indicated that the isolated and introverted structure of the judicial system played a significant role in the present condition of the judicial system and it was not a coincidence on the contrary it was an outcome of a deliberate preference in order to preserve the legal and actual structures of the military coup.
 
That the people in senior judicial positions, which are formed in opposition with the democratic legitimacy, behaved like political actors and interfered in legislation, execution, and especially jurisdiction by going beyond their authorities described in the Constitution and this was indicated with examples. Besides, it was concluded that the courts took decisions that were invalid, unfounded, incompatible with the international legal principles, and even in opposition with the former judicial opinions and implementations. Consequently, it was revealed that these decisions harm the security policy of the legal system and this result was reflected in the EU progress reports.
 
The judicial system’s excessive interferences not only harm the legal system but also the social peace by perceiving the democratic preferences and demands of the society as a threat. It was revealed that it is one of the important causes of the recent political crises in our country. It was stated that as an outcome of the anxiety for the maintenance of the built in privileges and habits, these interferences do not protect the state, the republic, and the justice indeed, on the contrary they harm.
 
Considering all these, Institute of Strategic Thinking (SDE) decided to present the opinions and suggestions below to the attention of the administration, political parties, judicial institutions, nongovernmental organizations, and the public.
 
1. SDE will continue to support the judicial reform efforts until a judicial system that is structurally democratized, free from political-ideological effects, based on the rule of law, and expands freedom, is constituted.
 
2. In order to achieve the aims with these efforts, the legal rules regularizing the constitution and functions of the senior judicial institutions should be rearranged and in order to make the necessary amendments in the judicial institutions that are like the constitutional institutions there should be an immediate constitutional amendment.
 
3. The constitutional amendments, which will reflect the modern democratic standards and will be executed by the Grand National Assembly of Turkey, are both legally and politically legitimate. The efforts of the Constitutional Court to hinder the amendments were not legally valid and legitimate in terms of the Constitution. The Constitutional Court and other senior judicial institutions have no authority to violate the Constitutional laws. The decisions taken by the Constitutional Court by going beyond its authority should be considered invalid by the Grand National Assembly of Turkey.
 
4. Therefore, in accordance with the constitutional amendments, the Constitutional Court should be reconstituted by taking the examples in other democratic countries into consideration. The Constitutional Court should be elected by the Grand National Assembly of Turkey and the President according to democratic legitimacy because it undertakes vital political roles such as the control of the laws for their competence with the Constitution and the closure of political parties.
5. The High Council of Judges and Prosecutors should be a guarantee for the judges and prosecutors like the examples in democratic countries, instead of a political means to interfere. Some of the council members should be elected by the Grand National Assembly of Turkey, some should be elected with an election by all judges and prosecutors, and some should be elected by lawyers. The adoption of a system in Turkey like the others in democratic countries will end the debates on the jurisdiction and provide an independent and objective judicial system.
 
6. Because there is not a general administrative procedure law in our legal system, the administrative acts of the High Council of Judges and Prosecutors should be in accordance with the administrative procedure law and this is also significant in terms of the guarantee for the legal authorities. In case the authorities of the Justice Inspectors are transferred to the Council, differentiating the authorities that inspect and the ones that decide should be adopted as a principle.
 
7. It is compulsory to reconstitute the high courts such as the Court of Appeals and the Court of State and to turn them into courts for counseling because of the freedom of individuals to claim their rights. In the election of the members, there should be objective criteria depending on competences. There should be some exemptions for these courts in terms of the trying a case as the court of first instance and also they should not interfere in the judicial discretion of the courts of first instance with their decisions.
 
8. The terms of office for the members of the high judicial bodies including of the Constitutional Court should be limited.
 
9. The Supreme Court of Appeals Prosecutor’s Office should be free from bringing a lawsuit against a political party to close it.
 
10. It is also compulsory to limit the military authority. The Court of Military Appeals and the High Military Administrative Court should be closed. The expert judgments can be made by the special departments of the Court of Appeals and the Court of State.
 
11. The judges and prosecutors should be given education on the principles of international law and democratic principles; they should improve their foreign language to understand international literature; their academic efforts should be supported by some programs; and the policies that impede their interactions with the society should be ended.
 
12. SDE invites nongovernmental organizations and other civil actors to take steps to have an immediate constitutional amendment and judicial reform that will make a democratic system, which will totally guarantee our freedoms and constitute the rule of law with all principles and institutions, possible.
 
Assist. Prof. Levent KORKUT                                                 Prof. Dr. Yasin AKTAY
Conference Coordinator                                                         SDE Chairman