European models influence the legal system in Turkey. It comprises the Constitutional Court (Anayasa Mahkemesi, seventeen members appointed by the President of the Republic and the Grand National Assembly) with vast censorship powers, the Turkish Council of State (Danıştay), the Court of Cassation (Yargıtay), and the Turkish Court of Accounts (Sayıştay), as well as superior courts and courts of the first instance. It distinguishes criminal-law judges from civil-law judges and from federal-law judges in charge of enforcing the corporate law.
The justice system is generally independent, it is also highly politicized and manipulated by ideology, and it is possible to interpret restrictive laws in a more or less repressive way. For example, 12,897 of the 35,117 people convicted worldwide of ‘terrorist crimes’ between 2001 and 2011 were in Turkey. In the Turkish case, ‘terrorist’ refers to demonstrating students, Kurdish mayors, university professors, and journalists. Courts often tried these accused with special jurisdiction. The abolition of such courts is currently being studied.
The Turkish legal system owes its origins to the administrative reforms of the Tanzimat (‘Reorganizations’) of 1839-1876, the codification undertaken by Cevdet Pasha (1822-1895), during the reign of Abdülhamid II, and the radical reforms that took place at the beginning of the Kemalist Republic, under the leadership of Mahmud Esad Bozkurt (1892-1943), Minister of Economy and then Minister of Justice, who strongly opposed the separation of executive, legislative, and judicial powers. The main legal documents of the Kemalist Republic were the 1924 Constitution, the Civil Code of 1926 – considered a conservative adaptation of the Swiss Civil Code – and the penal code inspired by that adopted by Fascist Italy at the time. Although the Constitution was thoroughly modified in 1961 and 1982, these documents were modified little in principle and constrained the Turkish legal space until the end of the 1990s.
The associate membership of Turkey in the European Union and the 2010 referendum amending several articles of the Constitution have provided some relief from the repressive measures of the legal system, both civil (equal status and shared responsibility within families) and penal (removal of many articles restricting freedom of expression and granting total immunity to the military). These reforms, however, did not allow complete liberalization: Article 301 of the Penal Code criminalizes ‘insults to the Turkish nation’ (which can be charged whenever the subject of the recognition of the Armenian genocide is raised), and the anti-terrorist law may lead to the charges against virtually any dissident. Regardless of the nature of the legal texts, control over the state’s agents remains insufficient: thousands of violations of human rights, many of which are attributed to the state, were reported by Human Rights Watch. The Diyarbakır branch of the Human Rights Association (İnsan Hakları Derneği) reported on 4 June 2012 that 171 children were killed during the ten-year rule of the Justice and Development Party.
Finally, even though Turkey has, since the end of the Kemalist rule, stipulated a separation of powers and granted – except during some periods – independence to judges, it has failed to limit the arbitrary power of justice. As illustrated by the lawsuits against Professor Muazzez İlmiye Çığ, a nonagenarian specialist in the ancient civilizations of Anatolia and Mesopotamia, and the novelist Nedim Gürsel, both of whom were accused of insulting moral values and religion, and Orhan Pamuk, a Nobel Prize-winning novelist who was prosecuted several times, many prosecutors and judges interpret the law in a very repressive way, even though the executive may not influence them. The latest example of these powerful legal interventions is the prosecution of world-famous pianist Fazıl Say in 2012 over his Twitter posts mocking Islam. There are also hundreds of Kurdish elected members who have been arrested or prosecuted in the last decade.
Turkey has adopted most of the international conventions on transparency, the rights to petition and to access information, and equal treatment of ‘nationals’ and ‘foreigners.’ It has also signed the Vienna Convention on Contracts for the International Sale of Goods, thus recognizing the possibility of resorting to the law of the country of the foreign contracting party in case of a dispute. Turkey has ratified various conventions on protecting patents and authors’ and artists’ rights (although illegal copying continues on a vast scale).
The constitutional amendments that were approved in April 2017 will see the abolition of military courts, including the Supreme Judicial Military Court and the Supreme Administrative Military Court. It will also be prohibited to form military courts, with the exception of what are described as ‘disciplinary courts’.