The 8th Judicial Package[1], presented by the government and now under parliamentary review following the completion of deliberations by the Commission, comprises 42 articles amending 15 laws and a decree law. While the bill offers partial improvements, it fails to address the chronic issues plaguing the Turkish judiciary. Particularly notable is the absence of amendments aimed at guaranteeing judicial independence or addressing practices that lead to violations of fundamental rights. The Constitutional Court and the European Court of Human Rights have highlighted the unjust arrests and punishments of tens of thousands of individuals, often resulting from overly broad interpretations of terrorism laws and the criminalization of activities falling within the realm of freedom of expression, assembly, and association. Despite these rulings, the proposal lacks provisions addressing these critical issues, nor does it include measures such as amnesty or sentence reduction for individuals convicted under these laws.It appears that many of the amendments proposed in the bill aim to address the requirements outlined in the annulment and rights violation decisions issued by the Constitutional Court. However, there are still several shortcomings and challenges present in this regard.To provide a summary, one significant amendment involves standardizing the application periods for appeals and cassations in procedural laws. Under this change, these periods will commence upon receipt of the reasoned decision and will be set at two weeks. This regulation is positive and expected to resolve specific practical issues and uncertainties.Another significant amendment is the establishment of a commission within the Ministry of Justice to handle applications concerning violations of the right to a trial within a reasonable time and alleged non-fulfillment of court decisions. This regulation was implemented in response to the pilot decision and subsequent dismissal decisions issued by the Constitutional Court.While this regulation is fundamentally optimistic, it is essential to highlight a significant shortcoming: the failure to provide attorney fees for the applicant's lawyer if the applications to the Commission are deemed justified. Additionally, the compensation awarded by the Commission should be commensurate with the amounts awarded by the European Court of Human Rights (ECtHR) and the Constitutional Court. Without careful consideration in determining compensation amounts, the Commission risks exacerbating issues rather than offering solutions.The third amendment introduces a right to compensation for specific unjustified protection measures, such as restrictions on leaving the residence, admission to a treatment institution, or compulsory medical examination. Furthermore, it is proposed that compensation claims, particularly in cases automatically warranting compensation (such as in the event of a verdict of non-prosecution or acquittal following the application of detention or arrest measures, as well as in cases where measures like residence restrictions or admission to treatment institutions were imposed), will be submitted to a compensation commission to be established.Previously, compensation cases had to be filed before the heavy criminal courts. However, if the compensation commission adheres to the standards set by the ECtHR and the Constitutional Court and awards attorney fees in favor of the lawyers representing the applicants, this regulation could be deemed positive.The fourth significant amendment pertains to the deferral of the announcement of the verdict (HAGB), and the rationale behind this change stems from the Constitutional Court's decisions regarding rights violations and annulments.<a fr-original-style="" href="#_ftn2" name="_ftnref2" style="color: rgb(9, 9, 9); text-decoration: none; background-color: transparent; outline: none; cursor: pointer; transition: color 0.3s ease 0s; touch-action: manipulation; user-select: auto; box-sizing: border-box;" target="_blank" title="">[2]</a> The most crucial alteration in this regard is the discontinuation of the practice of asking the defendant at the beginning of the trial whether they accept the HAGB and introducing the possibility of appealing against HAGB decisions.Previously, the defendant's acceptance of the HAGB at the outset of the trial could lead to bias against the defendant within the court. Moreover, the inability to appeal and the failure to examine the substance of the decision during the appeal process often resulted in automatic convictions. The amendments introduced aim to mitigate these shortcomings significantly.However, the provision allowing for decisions on confiscation in addition to the HAGB decision and enabling the immediate implementation of this decision appears highly controversial.After the rulings of the European Court of Human Rights (ECtHR) and the Constitutional Court of Turkey (AYM) regarding the criminalization of committing crimes on behalf of an organization without being a member of it, the new proposal restructures this offense as two separate crimes in independent articles (Article 220 and Article 314 of the Turkish Penal Code). However, it is difficult to claim that the new regulation is in line with the decisions of the ECtHR and the AYM.Firstly, under Article 314, the punishment for both membership in a terrorist organization and committing crimes on behalf of the organization without being a member is regulated similarly. Moreover, an additional punishment for the committed crime is also stipulated in the latter case. Especially if actions such as attending a meeting, organizing a demonstration, or hanging banners are considered within the scope of this offense, the penalties imposed may become even harsher than those for membership. This regulation exacerbates the ambiguity that led to the violation decisions.On the other hand, the proposal does not include any amendments regarding many different issues for which the ECtHR.[3] or the AYM[4] Have issued violation or annulment decisions. For instance, despite the annulment of Article 187 of the Turkish Civil Code regarding the surname of married women, no regulation is included in this proposal. Similarly, no changes are proposed regarding Article 9 of Law No. 5651, which the AYM annulled. Additionally, there are no amendments foreseen for Article 299 of the Turkish Penal Code concerning insults to the President, despite the ECtHR's ruling in the case of Vedat Şorli/Turkey that a new regulation was necessary. Numerous other examples can be provided.In conclusion, the 8th Judicial Package is far from offering a real solution to Turkey's judicial problems beyond partial improvements.

The Freedom Observer

To provide a summary, one significant amendment involves standardizing the application periods for appeals and cassations in procedural laws. Under this change, these periods will commence upon receipt of the reasoned decision and will be set at two weeks. This regulation is positive and expected to resolve specific practical issues and uncertainties.

What Does the 8th Judicial Package Bring?

In 2022, Article 217/A was added to the Turkish Penal Code through Article 29 of Law No. 7418, introducing the offense of "Publicly disseminating misleading information." This article specifies that disseminating untrue information concerning the internal and external security, public order, and public health of the country, with the explicit aim of instigating anxiety, fear, or panic among the public in a manner conducive to disturbing public peace, shall result in imprisonment ranging from one to three years.Concerns have arisen regarding the ambiguity of this provision, fearing it might evolve into a censorship mechanism in practical application. There's apprehension that news disapproved by the government could become subject to investigation under this provision. The truth is multifaceted, and the articulation of these various dimensions from diverse perspectives constitutes the core of freedom of expression and underpins democratic pluralism. Expressing a truth aspect that the government disapproves of could swiftly be labeled as "dissemination of false information.Despite widespread criticism, the government remained steadfast in implementing the law. Following its enforcement, deputies from the Republican People's Party submitted an application for annulment to the Constitutional Court, asserting the law's unconstitutionality. On November 8, the Constitutional Court deliberated on this application and, by a majority vote, dismissed the annulment request. While the rationale behind the decision hasn't been made public yet, it's evident that the decision poses significant concerns.As highlighted in the petition, the term 'untruthful information' (fake news) is fraught with ambiguity, and penalizing fake news grants the government the authority to dictate what constitutes the truth. This authority enables the government to label as untrue any information it perceives as detrimental, undesirable, or simply dislikes, allowing for the punitive action against its adversaries. In countries like Turkey, where judicial independence is severely compromised, such regulations effectively operate as a form of censorship. This is because authoritarian regimes' zeal to combat 'fake news' does not emanate from a dedication to truth or reality, but rather from their ambition to monopolize 'lying' by asserting the power to define the truth.False news is not criminalized in any democratic country due to these and analogous threats to democracy. The Venice Commission has issued an Urgent Opinion concerning this regulation in Turkey. Contrary to claims citing similar regulations worldwide, the Commission stated, 'European countries referenced as models for criminalizing 'false or misleading information' have not instituted such measures. Instead, they have imposed obligations on internet platforms concerning illegal content. While some countries have enacted laws addressing disinformation amid the Covid-19 context, these have faced criticism from international organizations, particularly human rights bodies. (1)The joint Declaration on fake news, released with the participation of numerous international organizations, emphasizes that instituting broad prohibitions on disseminating information grounded in vague and ambiguous terms like 'fake news' or 'non-objective information' runs counter to the principles of international law governing the restriction of freedom of expression. Consequently, such measures should be rescinded. (2)The introduction of Article 217/A in the TPC has introduced uncertainty and unpredictability regarding all aspects of the offense. While the article's title refers to 'misleading information to the public,' the content employs the concept of 'false information,' leading to inherent uncertainty within the regulation. This ambiguity arises because authentic information could also potentially mislead the public. Every aspect of the regulation is subject to broad interpretation, lacking the necessary precision as per the principles of legality in defining crimes and penalties. Interference with fundamental rights must align with legal provisions. Despite this, the Constitutional Court's decision not to annul the regulation warrants scrutiny.The application of the law since its inception has substantiated these apprehensions. As reported by the Journalists' Union of Turkey (TGS), over the past year, at least 33 journalists have undergone investigations, six have been detained, and four were arrested, although they were subsequently released shortly after. (3) A recent instance exemplifying this trend is the arrest and subsequent release of journalist Tolga Şardan due to his coverage of a National Intelligence Organization (MIT) report alleging corruption within the judiciary. The treatment of social media users, distinct from journalists, follows a similar pattern.

The application of the law since its inception has substantiated these apprehensions. As reported by the Journalists' Union of Turkey (TGS), over the past year, at least 33 journalists have undergone investigations, six have been detained, and four were arrested, although they were subsequently released shortly after.

Constitutional Court Decision on Disinformation Law

Concurrent with the erosion of the rule of law, Turkey's criminal justice system is increasingly entangled in a web of issues. Prisons are grappling with overcrowding primarily stemming from "political trials," where the foundational tenets of a fair trial are being blatantly disregarded. Despite the release of hundreds of thousands of individuals due to amendments in execution regulations and pandemic-related permits, the prison population persists at approximately 350,000 convicts and detainees, significantly surpassing capacity limits. This level of overpopulation inherently leads to substantial human rights violations. Moreover, there are supplementary challenges arising from the incarceration of the sick, elderly, and juvenile offenders within these correctional facilities.One can contend that the surge in prison overcrowding can be attributed to the leniency with which decisions on detention and convictions are rendered in what are termed "political cases" – situations where the state, rather than private individuals, is perceived as the direct victim. This challenge, denoted as the unpredictable and sweeping interpretation of terrorism legislation, has been consistently highlighted by numerous international observers and organizations. In fact, one of the stipulations set forth for Turkey under the European Union's visa liberalization agreement is the clarification of the definition of terrorism.The prosecution and penalization of actions unrelated to violence, aligning more with the exercise of freedoms pertaining to expression, assembly, and association within the framework of terrorism offenses, generates a multifaceted dilemma within the realm of the rule of law.Nonetheless, it appears that the government's approach to addressing prison-related issues is not primarily centered around rectifying the previously discussed challenges of equitable trial proceedings and safeguarding fundamental rights. Rather, the emphasis seems to be on releasing ordinary criminals through amendments to the execution laws.In fact, as an illustration, the year 2020 witnessed Law No. 7242 introducing substantial changes to Execution Law No. 5275. Among these amendments, the rate of conditional release for conventional offenses was diminished from 2/3 to ½. Additionally, the law incorporated a provisional Provisional Article 9, revising the conditions for probation and conditional release concerning actions committed before March 30, 2020. This clandestine amnesty led to the immediate release of approximately 100 thousand individuals.&nbsp;Conversely, in response to the Covid-19 pandemic, a permit system was introduced for individuals in open prisons and those eligible for such placement, envisaging their transition to probationary status. However, it's noteworthy that these regulations excluded crimes against the state and terrorist offenses from their purview.Through the enactment of the "Omnibus Law" No. 7456, which marked one of the inaugural legislations following the May 2023 elections, a revision in execution and a concealed amnesty were introduced. Accordingly, the addition of Provisional Article 10 to Law No. 5275 extended the validity of the Covid-19 pandemic permit. Additionally, the sixth paragraph of the same law brought about alterations in the eligibility criteria for individuals incarcerated on or before July 31, 2023, allowing them to be transferred to open penal execution institutions, as well as enabling their access to probation and conditional release.Effectively starting from July 31, 2023, this regulation encompasses convicts within penal execution facilities who have spent a minimum of one month there if their cumulative sentence of imprisonment is below 10 years, and three months if the cumulative sentence surpasses 10 years. Furthermore, individuals who have three years or less remaining before their release to open penal execution institutions are encompassed by this directive. However, it's important to note that these amendments exclude crimes against the state and terrorist offenses from their coverage.The formulation and the extent of this regulation give rise to significant concerns. Foremost, the regulation presents attributes of a specific amnesty, substantively, and has been implemented without adhering to the 3/5 majority requirement typically associated with amnesty laws. Furthermore, the law's applicability deadline is poised to generate noteworthy complications: A segment of individuals who committed analogous offenses on identical dates will stand to gain from this directive due to the finalization of their sentences, while others will not be able to capitalize on it as their cases remain unresolved. Undoubtedly, this engenders overt disparities.Most importantly, political prisoners are again excluded.Consequently, these enactments have inadvertently generated a form of impunity for conventional offenses. Individuals found guilty of offenses like manslaughter, looting, theft, and sexual assault will reap the advantages presented by these regulations and ultimately secure their release. In stark contrast, those who have been convicted of affiliations with terrorist organizations or involvement in other state-related crimes, often merely due to the exercise of their constitutionally enshrined freedoms of expression, association, and assembly as dissidents, will persist in confinement. These asymmetrical provisions further exacerbate and intensify the existing injustices prevalent within the framework of the criminal justice system.

The prosecution and penalization of actions unrelated to violence, aligning more with the exercise of freedoms pertaining to expression, assembly, and association within the framework of terrorism offenses, generates a multifaceted dilemma within the realm of the rule of law.

Unequal Execution Regulations Deepen Injustice

Within the scope of the lawsuit regarding the closure of the Peoples' Democratic Party pending in the Constitutional Court, the Chief Public Prosecutor's Office of the Supreme Court requested that the bank account to which the party's aid received from the treasury was being blocked, and the Constitutional Court gave the injunction to block the account on 5 January.[1] This decision was taken by the votes of 9 members, while 6 members objected. Evaluating the application made by the party for the annulment of this injunction, the Court decided to revoke the injunction on March 9, 2023, after receiving the defense of the defendant party.[2] This decision was made by the majority of 8 members, despite the opposition of 7 members. Between these two decisions, it is understood that the two members changed their minds. It is understood that the explanations in the said news belong to one of these members.According to the news, after the decision to lift the measure, the President called the members who voted to lift the measure and said, "I trusted you a lot. How do you vote to unblock accounts?" asked. There was no denial about this news. If the news is true, there is no doubt that the questioning of a high judge by the head of the executive body constitutes an intervention in the judiciary. The fact that such intervention takes place in an ongoing party closure case further increases the gravity of the situation. Because the decision to close a party while approaching the elections has the potential to affect the results of the election.One of the basic principles of the rule of law is the independence of the judiciary. In a country where the judiciary is not independent, the rule of law is emptied its meaning. The principle of equality before the law becomes inapplicable. In a place where the judiciary is not independent, the law and the judiciary cannot guarantee of rights and justice, on the contrary, they become instruments of arbitrariness and tyranny.Although the independence of the judiciary has always been problematic in Turkey, it has been expressed by all independent observers that the most fundamental problem facing the erosion of the rule of law in the last decade is the interference with the structural independence of the judiciary. The structural independence of the judiciary vis-à-vis the executive has been seriously weakened as a result of numerous constitutional and legal changes to the structure of the Council of the Judiciary (HSK) and high courts, the dismissal of one-third of the existing judges after the coup attempt, and the easing of conditions for the appointment of the large number of new judges.However, this news shows that the problem is not only structural but also that there may be direct interventions against judges and decisions. Such interventions not only lead to unjust decisions but also have political consequences. Controversial decisions, such as the cancellation of the Istanbul Metropolitan Municipality election given by the Supreme Election Board in the past, and the validation of unsealed votes in the Constitutional referendum, also had political consequences. During the election process, the Supreme Election Board will make decisions on critical issues such as whether Erdoğan will be a candidate for the third time, and whether the ministers can become a parliamentary candidates without resigning. Decisions must be free from any suspicion of interference. Such doubt makes democratic legitimacy questionable.Statements by a supreme judge that he was questioned by the executive for his decision are of historical significance. If these allegations are investigated and determined to be true, legal processes should be initiated. * Ali Rıza Çoban – Constitutional Lawyer<a fr-original-style="" href="#_ftn2" name="_ftnref2" style="color: rgb(9, 9, 9); text-decoration: none; background-color: transparent; outline: none; cursor: pointer; transition: color 0.3s ease 0s; touch-action: manipulation; user-select: auto; box-sizing: border-box;" target="_blank" title=""></a>

In her news dated March 30, 2023, Seyhan Avşar from Halk TV revealed some allegations that she stated were based on the statements of a member of the Constitutional Court.  In the news, it is stated that after the Constitutional Court decided to lift the measure regarding the blocking of HDP's accounts, the President called the members who voted for the measure to be lifted and expressed his discomfort with the decision.

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