It is understandable that, at this decisive stage for achieving a "historic" goal - never so seemingly within reach as the "definitive" reform of the constitutional structure of the judiciary appears to be (to which, for mere convenience, we will refer in the following as the "reform for the separation of careers" as it is called by its proponents) - every possible argument is being sought to defend the chosen path and eliminate any chance of reconsideration.
It is equally evident that the reference to the European context is being deliberately narrowed, despite the widespread democratic erosion affecting it - an erosion that includes attacks on judicial systems and, as seen in the well-known cases of Poland and Hungary, has led to the dismantling of judicial independence guarantees. The focus remains solely on elements that might confirm that the independence of public prosecutors is an exclusively Italian “anomaly” or that other models of "separation," such as the Portuguese one, prove that this system does not pose any problem whatsoever regarding the independence of the public prosecutor. And the reference to the Portuguese experience is yet more limited, as it does not take into account the specific features of the system and its national context: the Prosecutor General, who is the overall head of the prosecution service and presides the High Council of the Public Prosecutors, is appointed by the President of the Republic based on a government proposal, and only political custom - in the absence of constitutional guarantees- has so far prevented the possible appointment of a "non-magistrate."[1]
Referring to Europe can be useful to argue that the Italian judiciary’s and the ANM’s (National Association of Magistrates) defence of the Constitution, expressed in their opposition to the reform, should not be seen as the exercise of a “right” and , as European principles instead affirm, even less as the fulfilment of a “duty” to speak out when the rule of law and judicial independence are at risk.[2] Once again, this is portrayed as a national anomaly, with judicial associations allegedly overstepping their role and interfering with Parliament and politics. Finally, concerning the issue of strikes, Europe has been invoked again to justify a call - based on contexts where "political strikes" are not allowed - for an explicit ban that applies to magistrates engaging in "protests against government measures."[3]
Following a debate that selectively looks beyond national borders, Minister Nordio has, in recent months, directed our attention to European experiences and, in particular, to one that is far more distant from those previously mentioned: the British model of public prosecutor. The Minister has explicitly expressed his cultural preference for a prosecutor as a "lawyer of the prosecution" and for investigations being entrusted to "Scotland Yard."
To reaffirm his determination regarding the reform and to emphasize the so-called anomaly of the Italian judiciary’s mobilisation, Minister Nordio recently presented the reaction of the Turkish Minister of Justice, whom he met during an official visit to Ankara and Istanbul, as "confirmation" of such attitude. Upon being informed of the strike announced by Italian magistrates, the Turkish Minister allegedly expressed "surprise" and explicitly asked whether such a strike could be considered as "legal."
We are not at all surprised that this question came from the Turkish Minister.
What is truly striking is that our Minister decided to report this reaction as if referring to what is "legal" in Turkey could be a valid argument in our debate on judicial reform and the legitimacy of magistrates’ mobilization.
Even more striking is the fact that, at the same time, our Minister has not disclosed whether he asked his "counterpart" - with whom he signed a joint declaration on strengthening judicial cooperation in criminal matters and "mutual trust in their respective judicial systems" - the many questions and demands that the “Europe of rights and the rule of law”, along with its institutions, must continue to press upon the Turkish government.
There is no need to remind anyone that Turkey is a country marked by arbitrary arrests and mass purges - followed by summary convictions- of thousands of judges, lawyers, prosecutors, journalists, and many others. The scale and severity of this repression, as well as the grave violations of fundamental rights, marked an unprecedented authoritarian shift in July 2016.
Turkey is a country where judges, fearing for their lives and those of their families, have been forced to flee to escape imprisonment. Even today, these exiled judges courageously bear public witness to those events, recounting painful personal experiences to ensure that the plight of those still arbitrarily deprived of their freedom is not forgotten.
Turkey openly defies the European Court of Human Rights, refusing to comply with rulings that have found, in well-known cases of political opponents, that judicial proceedings and detentions were used as tools to silence dissent.
It is a country where rulings identifying violations of the principle "nullum crimen sine lege" (no crime without a law) and exposing systemic breaches of the European Convention on Human Rights- - affecting thousands of detainees accused of terrorism - remain unenforced.
Turkey is a country where, due to the severe repression and summary convictions targeting all actors in the justice system - including lawyers, who have been accused and convicted of terrorism simply for defending individuals detained on the same charge - the situation regarding the independence and impartiality of the judiciary represents, as per the words of the Commissioner for Human Rights of the Council of Europe, "an existential risk to the rule of law…and, by extension, to the respect for all human rights guaranteed under the European Convention on Human Rights."[4]
Turkey is also a country that, as highlighted by the Parliamentary Assembly of the Council of Europe, has significantly undermined the credibility and mission of the Council of Europe as a whole by persistently refusing to implement the European Court of Human Rights’ judgments.[5]
Through their associations, European magistrates continue to mobilise and urge European institutions to take all necessary steps to restore the rule of law, end arbitrary detentions, and enforce the European Court of Human Rights’ rulings.[6]
One of those still imprisoned in Turkey is Murat Arslan, former president of the independent Turkish association of judges and prosecutors, YARSAV, which was dissolved after the failed coup attempt. He was awarded the 2017 Václav Havel Human Rights Prize by the Parliamentary Assembly of the Council of Europe for his commitment to defending the rule of law and human rights. Arrested and sentenced to over 10 years in prison, Murat Arslan has been arbitrarily detained since October 2016. As of April 16, 2024, after serving three-quarters of his sentence and meeting all objective requirements for conditional release, his request was denied on arbitrary grounds-specifically, unproven risks of recidivism linked to his alleged lack of "repentance". Further requests have also been rejected.
MEDEL and other European associations have raised this issue with the Turkish Minister of Justice.[7]
Without receiving any answers.
[1] José P. Ribeiro De Albuquerque, The Portuguese Public Prosecutor: Institutional Architecture, Principles, Guarantees, Challenges, https://www.questionegiustizia.it/rivista/articolo/il-pubblico-ministero-portoghese-architettura-istituzionale-principi-garanzie-sfide
[2] ECHtR, Zurek v. POLAND, (application no. 39650/18), 16 June 2022, par. 222; Affair Sarisu Pehlivan c. TÜRKİYE June 6th 2023 (requête n o 63029/19),par. 42 ; CCJE Opinion no. 18 (2015); CCJE Opinion no. 25 (2022); ENCJ Sofia declaration 5- 7, June 2013; ENCJ Athens declaration, 1-3 June 2022.
[3] “The “political” strike of magistrates must be banned . As they do in France”, https://www.ildubbio.news/interviste/lo-sciopero-politico-dei-magistrati-sia-vietato-come-fanno-in-francia-og0h6am5
[4] Report following the visit to Turkey from 1 to 5 July 2019, https://rm.coe.int/report-on-the-visit-to-turkey-by-dunja-mijatovic-council-of-europe-com/168099823e. The report stresses that the European Court of Human Rights confirmed the seriousness of the situation through its first findings of violations of Article 18 of the Convention in Turkey’s history within the Convention system, owing to the misuse of judicial processes, with ulterior purposes.
[5] https://pace.coe.int/en/files/33148/html
[6] https://medelnet.eu/statement-of-the-platform-for-an-independent-judiciary-in-turkey-on-the-erosion-of-rule-of-law-in-turkiye/; https://medelnet.eu/joint-letter-to-european-institutions-on-the-anniversary-of-the-2016-coup-in-turkey2/; https://medelnet.eu/statement-of-the-platform-for-an-independent-judiciary-in-turkey/; https://medelnet.eu/jo-nt-statement-on-the-arrest-of-48-lawyers-and-7-intern-lawyers-in-ankara-turkey-16-9-2020-2/ ; https://medelnet.eu/medel-statement-on-judge-ahmet-cakmak/
[7] https://medelnet.eu/letter-to-the-turkish-minister-of-justice-medel-eaj-aeaj-and-judges-for-judges-in-support-of-murat-arslan/
This is a translation from the original Italian. For the original article, see: https://www.questionegiustizia.it/articolo/lo-i-stupore-i-del-ministro-della-giustizia-turco-a-colloquio-con-il-ministro-nordio-le-nostre-domande-senza-risposte