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The Threat to Judicial Independence in Turkey

08/02/2016 - 10h08

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GILMAR MENDES
JOSÉ ANTONIO DIAS TOFFOLI
OTAVIO LUIZ RODRIGUES JUNIOR

News about the military coup attempt in Turkey caused indignation all over the world, a natural and expected consequence of a breakdown in democracy in the very 21st century, in a country so relevant in the international scenario.

However, the reaction from the Turkish government deserves vehement repudiation. Nearly 15 thousand people have been imprisoned without any legal process, determination of guilt, or legal recourse permitting them to know and understand the rationale for their imprisonment.

In response to the foiled coup attempt, judicial authorities, military personnel and university professors have been rounded up and are being kept under subhuman conditions, held in stadiums and improvised prisons. The scenes reveal practices reminiscent of dictators, not a democratic government in legitimate reaction to an act of insurgency.

Contemporary democracies have means of protection and security available to them without needing to resort to practices of this nature.

To illustrate the gravity of the situation, there are judges from the Constitutional Tribunal, The Court of Appeals, and various other tribunals whose whereabouts are unknown, not to mention public prosecutors, defenders, lawyers and legal professors, some who are known by the authors of this article.

Coincidentally, many of these individuals have been active in promoting causes, judging cases or writing articles denouncing instances of corruption and restrictions of fundamental rights in Turkey.

Military authorities who have been arrested, among them the Commander of the Air Force, have appeared in photographs with visible signs of beating, which calls into doubt the legitimacy of the methods being employed by the Turkish government after the failure of the coup attempt.

Any threat to the democratic order has to be resisted and fought against with vehemence. The use of necessary force is a legitimate reaction against groups that rise up against the Rule of Law.

Armed attack against democracy cannot be confronted with flowers. Nothing justifies the insurgence of military forces against legitimately constituted governments.

On the other hand, mass imprisonment, including that of judges, without individual process and conduct, devoid of proof, is a brutal affront to the elementary rules of human rights.

Even more worrisome still is the threat of the restoration of the death penalty to be applied in cases of those supposedly involved in the coup attempt.

An event like the one that took place in Turkey cannot be allowed to serve as a pretext for indiscriminate aggression against opposition politicians and members of the Judiciary.

In view of this context, a clear and firm manifestation from the international community is urgent and necessary. The Venice Commission, a consultative body of the European Council for Constitutional Questions, and other organizations have already been called upon to denounce the abuses being committed by the Turkish government.

The Supreme Electoral Tribunal, the Ministry of Foreign Affairs and the Association of Brazilian Magistrates have released communiques supporting the basic and fundamental rights of persons who have been imprisoned or have disappeared.

Repudiation of coup attempts cannot, therefore, be transmuted into tolerance of arbitrary acts performed even by legitimate governments. Respect for the legal processes and laws as the basis of preserving the Rule of Law is essential.

GILMAR FERREIRA MENDES, a Justice of the STF (Supreme Federal Court), is President of the TSE (Supreme Electoral Court)

JOSÉ ANTONIO DIAS TOFFOLI is a Justice of the STF (Supreme Federal Court)

OTAVIO LUIZ RODRIGUES JUNIOR is a PhD Professor at USP (University of São Paulo) in the Civil Law Department of the College of Law

Translated by LLOYD HARDER

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