Judicial Reform: Is It Really a Reform?

Assoc. Prof. Dr. Murat Volkan Dülger

Introduction

The truth is this: Turkey is not yet a country that has attained a strong and unerring system of justice, an independent and impartial judiciary, and an orderly and foreseeable, systematic and scholarly legal service, and that has been able to provide these to the people living on its soil; it is not yet a country that possesses a modern, developed and fair criminal justice system. To say this is hard and painful for a person like me, who is a citizen of this country, who has built his whole life and future in this country, who is raising his children in this country, and who has both devoted his entire professional career to the law and earns his living from the legal profession. But this is the truth, and in order to put it right one must, before anything else, face the truth.

Yet the swift, equal and high-quality application of the law and the delivery of justice is not a favour bestowed by the State on its citizens but a “service” which it is bound to provide. This is one of the most fundamental reasons for the existence of the State; for, under the hypothetical social contract, individuals have transferred to the State the duty and the right to deliver justice. The demand for justice of citizens who earn their bread the hard way but hand half of that bread over to the State, in the twinkling of an eye, under the name of taxes is the most fundamental of rights; one reason why these taxes are paid is to secure a social life that is just and in which everyone acts in conformity with legal norms and, to that end, to make it possible to establish a good system of justice. Yet, again, I must say with regret that there is as yet no “supply” to meet this demand.

The number of affirmative answers to the question “Is justice possible in Turkey?” and our hopes in this regard are dwindling with each passing day. We see that yet another of the judicial reforms which always emerge in periods such as this – when confidence in the justice system and in the judiciary has declined (indeed, has nowadays hit rock bottom) – and which are held out to us with the belief that they will solve the problems at their root, is now at our door. In this article I shall try to analyse whether this “supply” of reform will meet the demand for justice of society and of us, the individuals who make up society.

I have not the slightest doubt that this judicial reform package, like the others, was drafted with the very best of intentions and that the attempt to enact it is genuinely aimed at healing bleeding wounds. Nevertheless, I could not refrain from writing a critical piece. For I must say that the point on which there is unanimous agreement in academia and in practice, the prevailing view, is that the problem lies deeper, that the problems stem not from a simple error or deficiency in the rules but from an error and deficiency of mindset. I must therefore say that, in order “to rise to the level of the civilised nations and to surpass them”, the goal which Atatürk bequeathed to us all as a legacy, lawyers must change their mindsets before the rules of law are changed. In this context, I regard the “entrance examination for the legal professions”, which is contained in the reform package and has been postponed for years out of political concerns, as a most appropriate and positive step. But, as our forebears said, “a person’s mirror is his work; words count for nothing”; I hope that this examination, if it is put into effect, will serve as a means of selecting well-qualified lawyers and that law faculties, law professors and law students will thereby find an opportunity to put their house in order.

As is well known, the “Judicial Reform Strategy Document” was published at the end of May this year. First of all, the document was presented by the President of the Republic, the head of the executive, who is not one of the members of the legislature that will enact this document into law. That a text in the nature of a bill, which sets out with the claim of reforming the judiciary, should be presented by the head of the administration, who has sworn an oath of impartiality and is not a member of Parliament, is, I think, enough in itself to show how independent and impartial the legislative and judicial powers in the country are and why this judicial reform is needed. In the end, this Judicial Reform Strategy Document, which emerged in May, is before us again as a bill in these days when we are beginning to approach October.

The following sentences in the general explanatory memorandum of the bill show clearly what reform means, and what it ought to be, in the context of freedom of expression in particular: “Since it is the basic condition for individuals to develop their personality and thus for the development of democratic society, taking at every opportunity steps that will broaden the scope of freedom of expression or strengthen the safeguards of this freedom is among the priority objectives of judicial reforms.”

Despite the clear statements quoted above from the general explanatory memorandum of the bill, which was signed and submitted by members of parliament belonging to the governing party, the realities of our country can easily be understood from the two prominent examples set out below. In this context, let us briefly recall what has happened in the judiciary since the reform moves began in May, up to the end of September. For reform must not remain mere words; it must be put into practice.

In this short period, first, Canan Kaftancıoğlu, the Istanbul provincial chair of the country’s largest opposition party, was sentenced to a total of 9 years and 8 months’ imprisonment at the end of a trial on five separate charges brought against her on account of posts she had made on social media 7 years earlier. One of the charges was the offence of “inciting the public to hatred and hostility” regulated in Art. 216 of the Turkish Criminal Code (TCK), an offence which requires that the statement give rise to a clear and imminent danger to public security. The finding, after all the years that have passed, that posts made seven years ago led to a “clear and imminent danger” is most illuminating as to how well practitioners have absorbed the theory of the offence! This state of affairs is a clear indication that there is truly a need for a reform, indeed for a revolution.

The Turkish judiciary delivered another of its reformist decisions in respect of Selahattin Demirtaş, the co-chair of another opposition party. Demirtaş, whose release had been ordered in his case before the Ankara 19th Assize Court ahead of his hearing before the European Court of Human Rights (ECtHR), and whose request that the time he had spent in pre-trial detention be deducted from his sentence had been granted, became the subject of a different investigation, opened on 20 September 2019, immediately after his hearing before the Grand Chamber of the ECtHR, and an order for his pre-trial detention was issued the very next day. The investigation was opened in connection with acts of Demirtaş for which he had already been tried, and the principle that “no one may be tried twice for the same matter / ne bis in idem” was thus openly trampled upon. In the statements made by the competent authorities, however, it was said that this time “different types of offence were the subject of the investigation”. Yet it is a piece of basic knowledge which every law graduate ought to possess that the legal characterisation of the offence may change at the investigation/prosecution stage, but that the perpetrator and the act cannot be changed. In other words, you can change the legal characterisation of the offence, but you cannot change the act. As though this plain truth did not exist, a new investigation was opened although the acts had not changed. Reform moves in the judiciary thus appear to have started “at full throttle” even before the bill has come before Parliament.

Indeed, as stated on page 7 of the Judicial Reform Strategy Document, “However important improvements to legislation in the field of rights and freedoms may be, what is decisive for the success of reforms is practice.” Accordingly, however much reform is carried out in the norms, there is no prospect of success unless a revolution is brought about, in the minds of the judges, prosecutors and attorneys who apply those norms, on the subjects of “human rights”, “the rule of law”, “diligence” and “integrity”.

Having made this general assessment, I shall try to assess the proposed amendments from the standpoint of the technique of criminal law and the law of criminal procedure. Accordingly, not all of the proposed amendments but only the developments in the field of criminal law and criminal procedure will form the focus of this assessment.

I. Amendments in the Field of Criminal Law and the Law of Criminal Procedure

A significant part of the judicial reform draft consists of the amendments expected to be made in the fields of criminal law and the law of criminal procedure. This is in fact also an indication that criminal law and the law of criminal procedure are the area to which the demands for “justice” in Turkey relate, the bleeding and most problematic part of the judiciary, and the area that inflicts wounds on society which will not heal and has become a sociological problem. On the other hand, we see that the judicial reform is in the nature of a “confession” by the government, at long last, of the problems in the practice of criminal law that are on everyone’s lips and in everyone’s mind and thoughts. Before addressing the important amendments one by one, I must say this: the provisions presented to us here under the guise of “amendment” are ones we already have. They are therefore, in the true sense, neither “amendment” nor “progress”. Change and progress must take place not in our legislation, which already contains progressive provisions, but in the minds of those who apply it or, to put it another way, of “those who do not apply it”¹. What must take place is not a reform of the law but a revolution of the law in those minds.

The provisions expected to be amended in this framework are contained in the Turkish Criminal Code No. 5237 (TCK), the Code of Criminal Procedure No. 5271 (CMK) and the Anti-Terror Law No. 3713 (TMK), Law No. 5275 on the Execution of Sentences and Security Measures (CGTİHK) and the Child Protection Law No. 5395 (ÇKK).

The amendments contained in the bill and my comments on those amendments are as follows:

• The addition of the sentence “Expressions of thought that do not exceed the limits of reporting or that are made for the purpose of criticism shall not constitute an offence.” to the offence of “making propaganda for a terrorist organisation” regulated in Article 7 of the TMK.

It is abundantly clear that it is not possible to object to such a provision. “Expressions of thought that do not exceed the limits of reporting or that are made for the purpose of criticism shall not constitute an offence.” Freedom of the press, society’s right to receive information and, in a broad sense, freedom of expression ensure that people are not punished for having engaged in “journalism”. This freedom also applies to internet journalism, which nowadays increasingly has the character of a source of news, and to broadcasts and content shared via social media.

In criminal law, freedom of expression falls within the “exercise (use) of a right”, one of the grounds of justification (Art. 26(1) TCK). Any statement that does not incite to/glorify violence is lawful within the scope of freedom of expression and does not constitute an offence.

I both find this provision justified and criticise it. For what I criticise is that a fundamental right such as freedom of expression, which is recognised in every civilised country of the world, that this piece of knowledge, which is imparted in the course on the general part of criminal law taught in the 2nd year of every law faculty in our country, that this ground of justification, which is found in every book on the general part of criminal law published in our country, is presented as a novelty, as a reform. If this is a novelty, were expressions of thought that had the purpose of reporting or criticism and fell within the scope of freedom of expression punished in the case files dealt with before this bill was passed? Or, if this bill is not enacted, will these expressions of thought falling within the scope of freedom of expression continue to be punished as propaganda for a terrorist organisation?

Of course this is not a novelty. Freedom of expression was not bestowed on us at the end of September 2019 by this judicial reform. Acts falling within the scope of freedom of expression – the freedom to receive and to learn information and the freedom to express one’s opinion, which are subsumed under freedom of expression – benefit from the ground of justification of the exercise of a right and do not constitute an offence. Nor is there any need to make an addition to Article 7 of the TMK for this purpose. The general provisions of the TCK also apply to the offences in special criminal laws and in laws containing criminal provisions, and there is no dispute on this point (Art. 5 TCK).

This provision looks as though it had been drafted for judges and prosecutors who forget freedom of expression and who do not or cannot grasp when an expression of thought is lawful and when it constitutes an offence, so that this truth may be thoroughly “drummed into them”. Indeed, this point is expressed as follows in the explanatory memorandum to Article 13 of the bill: “When the decisions rendered by the courts in relation to the offence of propaganda are examined, it is seen that different decisions have been rendered on the same subject and that there is no uniformity of practice. By the provision envisaged in order to eliminate these divergent practices, it is emphasised that expressions of thought that do not exceed the limits of reporting or that are made for the purpose of criticism shall not constitute an offence.”

On the other hand, the addition of this phrase, like the judicial reform as a whole, is in the nature of an admission. For this provision shows that statements in the nature of reporting or criticism have also been punished under the offence of propaganda for a terrorist organisation. It is for this very reason that we can achieve reform not through changes and improvements in abstract norms but through change and progress in mindset and practice. That is why adding to the provision a phrase to the effect that reporting or criticism shall not be deemed an offence is neither a novelty nor progress of any kind. We already have this rule. Instead, it would have been far more appropriate to lay down criteria to be used in determining what is and what is not news and what is and what is not criticism, and to give practitioners in-service training on this subject. For even though it is said that reporting and criticism do not constitute an offence, it is the judges and prosecutors who will subject the terms “news” and “criticism” to interpretation. If criteria had been laid down to show judges and prosecutors the way and to guide them in this regard, a ground of justification based on the general provisions of the TCK would not have been repeated and, at the same time, clarity geared to practice would have been provided in respect of that ground.

I must add, however, that laying down such a criterion would also be a casuistic method of legislating and that I criticise that method as well. This provision is therefore an open confession of our inadequate legal education, of repressive and conservative professional habits in the field of freedoms and, as the upshot of all these, of poor-quality and erroneous decisions.

What I find positive, despite all my reservations above, is that the legislature too has become aware of this distortion in the criminal justice system and is endeavouring to find a temporary solution to it by intervening, even if not radically. I must underline that this too is a positive development.

The lasting solution in this matter, however, lies with the Court of Cassation and with academia. If the judges who are members of the Court of Cassation, in the decisions they render, and law professors, in the courses they teach, rely on the European Convention on Human Rights and on the case law of the European Court of Human Rights and ensure that these are applied and learned in undiluted form, the problem will resolve itself in the medium term.

• The periods of pre-trial detention regulated in Article 102 of the CMK have also been regulated separately for the investigation phase. Accordingly, under paragraph 4 added to that article, the period of detention during the investigation phase may not exceed six months for matters not falling within the jurisdiction of the assize court and one year for matters falling within the jurisdiction of the assize court. Within the scope of the TMK it is one year and may be extended by a further six months.

At the same time, the provision on extension periods – two years, with an extension of three years where deemed necessary, in matters falling within the jurisdiction of the assize court, and an extension of five years for offences within the scope of the TMK and offences to which the TCK’s provisions on offences against the State apply – remains in place. For the criminal courts of first instance, this period is 1 year + an extension of 6 months.

Thus, in matters falling within the jurisdiction of the assize court, the perpetrator may be held for one year as a suspect at the investigation stage. Once the prosecution stage is reached, a perpetrator who has spent one year in detention at the investigation stage may be held for a maximum of one more year. If the conditions are met, an extension may be applied. In matters falling within the jurisdiction of the assize court there is a total of 2 years (1 year of which may be during the investigation) + an extension of 3 years.

This provision can also be looked at from another angle. By a contrary interpretation, could a period of 1 year in the investigation + 2 years with the prosecution + an extension of 3 years = 6 years in total be applied? Could this period therefore be understood as a maximum of 6 years rather than 5?

Of course, this interpretation, since it would operate “against” liberty (the principle of in dubio pro libertate should be recalled), would run counter to the purpose for which the norm was introduced (ratio legis) and would be incompatible with the fundamental principles of law. Moreover, when literal interpretation is resorted to, it again becomes apparent that there is no room for such an interpretation, given that the newly added paragraph uses the term “investigation” whereas the second paragraph, without making any specification such as “prosecution”, refers directly to assize court – criminal court of first instance. However, one should recall the institution that emerged in practice under the name “detention following judgment / detention by virtue of the judgment”: when paragraph 2 was interpreted as applying only to the courts of first instance, it had likewise been thought that such an interpretation could not be made, and it had been opposed. Could a similar situation arise today for this new provision? I must say that, in Turkey and where the Turkish judiciary is concerned, it is hardly possible for us to answer this question with a categorical no.

On the other hand, these maximum periods of detention introduced for the investigation show that an attempt is being made to solve certain problems. The aim is thus to prevent persons from remaining in detention as suspects for years without their indictments being prepared, and to prevent investigations conducted in this manner. In Turkey there are many investigations which have caused a great public stir and in which persons have been in detention for a long time without an indictment having been drawn up against them. Pre-trial detention is an exceptional and extraordinary measure and requires the existence of strong suspicion of an offence. Indeed, where the coercive measure of pre-trial detention has at the same time been ordered against suspects in respect of whom no indictment has been prepared for periods of nearly a year or more than a year, it becomes apparent that the strong suspicion of an offence required for resorting to detention does not exist. For if the public prosecutor’s office, which was convinced of the strong suspicion of an offence and requested the measure of detention, has been unable to turn that suspicion into a charge over so long a period, then the suspicion at hand is not strong either.

In our country, “guilt by suspicion” must be eliminated and the detainee must also cease to be regarded as a “hostage”. Since the new provision introduces a maximum period for detention measures at the investigation stage, it is a positive development. In our country pre-trial detention, which is a coercive measure, has virtually been turned into an advance punishment; indeed, it is a known fact that in practice judges find it difficult to hand down an acquittal after long periods of detention, so that long periods of detention also put pressure on the conscience of judges.

I hope that the reservations I have expressed above will be dispelled, that the provision will be applied with an interpretation in conformity with the fundamental principles of law, and that grievances will be prevented. Similarly, I must point out that the institution of “detention following judgment”, which is not provided for in the CMK, must be prevented from being adopted and applied by practice.

• The simplified trial procedure and the fast-track procedure have been introduced, and the public prosecutor’s discretion in bringing the public action has been broadened.

Formerly the TCK had adopted a distinction between felonies, lesser offences and misdemeanours (cürüm – cünha – kabahat). The tendency to decriminalise misdemeanours, which emerged in Western Europe from the second half of the 20th century onwards, has also made itself felt in the criminal law of our country, and the approach of drawing such a distinction between offences has been abandoned. As a result, misdemeanours have been regarded as infringements of the administrative order and have been met with administrative sanctions. The relevant provisions have been set out in a separate statute, the Misdemeanours Law No. 5326.

In recent years this trend has begun to make itself felt among offences as well, and avenues of “alternative dispute resolution” have begun to be sought for offences whose content of wrongfulness and whose sanction are of a minor nature. The aim is thus that, in criminal proceedings, which require qualified manpower and are costly, judges in particular should deal with the more serious offences, and that a better judiciary and better access to justice should be secured with fewer cases. This point is also expressly stated in the general explanatory memorandum of the bill:

“Alternative dispute resolution methods, which constitute an exception to the principle of mandatory prosecution, not only ensure the protection of the victim’s rights and the victim’s satisfaction in offences remaining below a certain penalty threshold, but also enable the perpetrator to confront the content of wrongfulness of his act and to make amends for it. These procedures, which produce swift and cost-effective solutions, facilitate the perpetrator’s resocialisation at the early stages of criminal proceedings, in particular by giving a chance to first-time offenders. In addition, the alternative methods developed as against the traditional avenues of litigation also serve the purpose of alleviating the increasing workload of the judicial authorities, and save the time and financial resources needed for more complex and serious offences.”

We see that, particularly in the case of offences with an upper limit of two years or less, these offences are disposed of by means of the alternative solutions provided for prior to the prosecution stage. Accordingly, a distinction between very minor offences (offences with an upper limit of two years or less), minor offences (offences which do not fall within the category of very minor offences and come within the jurisdiction of the criminal court of first instance) and serious offences (offences coming within the jurisdiction of the assize court) emerges from between the lines of the statute and from a comparison of the provisions it contains.

An attempt is made to deal with these very minor offences first at the investigation stage, by broadening the public prosecutor’s discretion in bringing the public action, which is regulated in Article 171 of the CMK. According to the reform bill, in offences with an upper limit of two years or less the public prosecutor will be able to postpone the bringing of the public action for a period of five years. However, if the offence is subject to victim–offender mediation or to prepayment, or if it is one of the offences relating to criminal organisations, sexual offences or offences committed against a public official, the public prosecutor has no power to postpone the bringing of the public action. In addition, the person harmed by the offence and the suspect have been granted the right to object to the postponement. Although the suspect’s right to object to the postponement decision was not contained in the provision, it used to be secured by case law of the Court of Cassation which is, in our view, highly positive. With the reform bill, this practice has now been enacted into law².

If a public action is nevertheless brought in respect of very minor offences, then, as a second step, the prosecution of these offences may be conducted under the “simplified trial procedure” (Art. 251 CMK). The legislature, which at the first stage grants the public prosecutor discretion not to proceed to the prosecution stage, aims, if the prosecution stage is reached, to reduce the burden on the criminal courts this time by providing for a simplified trial procedure. The simplified trial procedure, with whose application we are familiar from other branches of law, is thus provided for criminal procedure as well. Accordingly, after the indictment has been accepted by the court, the accepted indictment will be served on the accused, the victim and the complainant, and they will be asked to submit their statements and defences in writing within fifteen days (Art. 251(2) CMK). The notification will also state that judgment may be given without a hearing being held.

The court may give judgment without holding a hearing and, if it convicts, the sentence it imposes may be reduced by one quarter (Art. 251(3) CMK). An objection may be lodged against the decision given. In that case, the court that gave the judgment opens a hearing and the trial continues in accordance with the general provisions. Provided that this is stated in the summons to the hearing sent to the parties, a hearing may be opened and a new judgment given even if the parties do not appear. In this “new” judgment the court is not bound by the decision it gave before the objection (Art. 252(3) CMK). A judgment given in favour of one of the accused also extends to the other accused. Again under the simplified trial procedure, where it is deemed necessary, a hearing may be opened and the simplified trial procedure abandoned.

Finally, the “fast-track procedure” must be addressed (Art. 250 CMK). The institution of “prosecutor–accused bargaining” (Plea bargaining), which has long existed in the Anglo-American legal system and whose incorporation into the Turkish legal system has been a matter of debate, has been recognised by this provision for certain offences³, adapted to the conditions of our country.

Under the procedure, the basic sentence to be determined by the public prosecutor between the lower and upper limits of the penalty is reduced by half, and this amount of penalty is offered to the suspect. The suspect may accept this offer by a statement made in the presence of his defence counsel. Upon acceptance, the public prosecutor will request in writing from the competent court that the fast-track procedure be applied. The provision also sets out what the written request must contain (Art. 250(8) CMK). If the court is satisfied that the conditions are met and that the act falls within the scope of the fast-track procedure, it gives judgment in accordance with the sanction specified in the request; otherwise it rejects the request and sends the file to the chief public prosecutor’s office so that the investigation may be concluded in accordance with the general provisions. A suspect who fails to appear before the court without an excuse is deemed to have waived this procedure (Art. 250(9) CMK).

Statements made in the fast-track procedure, as in the institution of victim–offender mediation, may not be used as evidence in subsequent investigation and prosecution proceedings (Art. 250(10) CMK). Certain cases in which the fast-track procedure is not to be applied have also been provided for. Where the offence was committed by way of participation and one of the suspects does not agree to the application of this procedure, and in cases of minority, mental illness and deaf-muteness, the fast-track procedure is not applied (Art. 250(11)–(12) CMK).

It had long been discussed and expected that a procedure in the form of the fast-track procedure would be introduced. Although a body of experience in Anglo-American law concerning such an institution, which may be regarded as considerable, can be carried over into our law, the functionality and the problems of the institution can only come to light through practice. In addition, a regulation on this procedure is also to be issued (Art. 250(15) CMK). For this reason, I must say that it is still too early to make a definitive assessment. However, the fact that, for historical reasons, the “accusatorial system” is in essence in operation in the criminal justice system of the Anglo-American legal system, as it is in private law, gave rise to bargaining between prosecutor and accused in that system and made it workable. In Turkey, which belongs to the Continental European legal system and where the “cooperation system” prevails in the law of criminal procedure, how this new institution, which is also absent from the country’s historical substructure, will function – or rather, whether it will function at all – is a question whose answer all criminal lawyers, like myself, await with curiosity. I hope that, as envisaged, it will lead to good results and will serve as an instrument in bringing the criminal courts up to the expected quality.

I should also like to touch briefly on some of the other amendments.

• The scope of victim–offender mediation has been broadened; the offences of violation of the freedom of work and labour, abuse of trust, and purchasing or accepting property derived from an offence have also been brought within its scope. The intention is to reduce the burden on the courts by increasing the number of offences to be brought within the scope of victim–offender mediation (e.g. by also including Art. 86(2) TCK).

• By a highly positive provision, even where the decision is one of those not open to appeal on points of law, “thought”

offences have been brought within the scope of appeal on points of law (Art. 286(3) CMK). Considering Turkey’s record with regard to offences of thought and, in particular, political offences, the new provision seeks to remedy the injustice that most recently arose in the Cumhuriyet newspaper case, where the judgments against the accused who had received sentences of less than five years became final on appeal on facts and law, while the convictions of the accused who had received heavier sentences were quashed.

• In cases where, without any further inquiry being needed, a lesser penalty must be imposed or it must be decided that there is no need to impose a penalty on account of personal grounds that extinguish the penalty or require a reduction of the penalty, or on account of personal grounds for impunity, the possibility has been provided for the unlawfulness to be corrected directly by the court of appeal and for the application to be dismissed on the merits (Art. 280(1)(c) CMK). Under the new provision the court of appeal will also be able, where it is established that a condition for investigation or prosecution has not been met or that the prepayment and victim–offender mediation procedure has not been applied, or where the case must necessarily be conducted jointly with a case pending before the court of first instance, to decide to quash the judgment and to send the file, for re-examination and a fresh judgment, to the court of first instance whose judgment has been quashed or to another court of first instance within its own judicial district which it deems appropriate (Art. 280(1)(f) CMK).

• The amendment to Art. 17/A CGTİHK also deserves attention. Let us first share the full text of this provision, which has gone unnoticed: “Where the offence was committed jointly and it is possible to apply the third paragraph of Article 280 and Article 306 of the Code of Criminal Procedure No. 5271 of 4/12/2004, the court of first instance that gave the judgment may be requested to give a decision on the postponement or stay of execution. Before the decision is given, the public prosecutor and the convicted person may be asked to submit their views in writing. The decision shall be given without a hearing being opened, and an objection may be lodged against this decision. The granting of the request for postponement or stay may be made subject to the provision of security or to another condition.” Under this provision, all persons convicted of terrorism whose convictions have become final can, by stating that the judgments given in respect of the persons with whom they committed the offence by way of participation are at the stage of appeal on facts and law or

appeal on points of law, request a stay of execution. This will of course result in thousands, perhaps tens of thousands, of requests for a stay of execution piling up before the public prosecutors’ offices responsible for execution. While it is possible for a quashing to extend to the accomplices, a highly flawed provision is being made by bringing this forward to the stage at which review of the proceedings is applied for. It is plain that granting convicted accomplices thousands of requests for a stay of execution before the unlawfulness has even been established by a quashing decision will have no legal basis whatsoever and will, moreover, impose an excessive workload on the prosecutors’ offices. Frankly, one of the amendments that will have the widest impact in practice, yet which everyone has overlooked, is taking place in the CGTİHK.

• The grounds for returning the indictment (Art. 174 CMK) have been broadened, in an effort to ensure that a more serious indictment has to be prepared.

• By adding a paragraph 2 to the offence of unlawfully disclosing or obtaining data (Art. 136 TCK),

it has been provided that the penalty shall be doubled where the personal data consist of the statements and images recorded pursuant to Article 236 of the CMK, entitled “Hearing of the victim and the complainant”.

II. The Entrance Examination for the Legal Profession and the Future of the Legal Profession

The problems of legal education and of the legal profession are one of the important items on Turkey’s agenda. In particular, the judicial absurdities that have multiplied in recent times and the law faculties opened at great speed and in great numbers have brought this subject onto our national agenda.

First of all, I think we have understood this: as the number of law faculties, and consequently of graduates, increases, there is no increase in the number of good lawyers, nor does the quality of the law improve. These are not directly proportional concepts. Quite the contrary: as the number of law graduates increased, serious declines in the quality of the law began to occur. For we did not have law teaching staff, law libraries and, unfortunately, a legal culture in sufficient quantity to train so large a number of would-be lawyers. This number was met to a certain extent, but as the “inflation” of law graduates kept growing, we unfortunately found ourselves out of our depth.

The changes being discussed today centre on the introduction of an entrance examination for the legal profession. I am not opposed to the idea that students who do not meet the professional requirements cannot properly perform a task involving such heavy responsibility and should not bear the title of lawyer. By also extending legal education to five years, the changes aim to train well-qualified lawyers and to ensure that only these well-qualified lawyers continue in the profession. But there are both other problems and other dangers:

First of all, students whose “education” at high-school age has consisted solely of solving multiple-choice tests are like fish out of water when they arrive at the law faculties. Students whose reasoning ability and analytical thinking skills have not developed are at the same time ignorant of fields such as philosophy, sociology, psychology, literature and economics, which form the backbone of law. It is possible for these students to become well-qualified lawyers not in four or five years, but only by receiving a high-quality and many-sided education over a very long period. In addition, as I stated at the outset, the number of qualified teaching staff is also small. You can increase the number of students overnight by putting up buildings and creating lecture halls, but the making of a qualified and productive member of the teaching staff is a process that takes years (and that only if the appropriate conditions also exist). The law faculties opened without these processes and figures being calculated, in other words our lack of planning, once again lie at the root of the problems.

In addition, I also think that one year, or perhaps (by reducing the course hours) two years, filled to the brim with courses such as philosophy – though not legal philosophy; it is not possible to learn legal philosophy without knowing philosophy –, logic, sociology, economics, literature, ethics, psychology, a foreign language and even mathematics would be of great benefit in training well-qualified lawyers. On the other hand, however, I also harbour the fear that having an examination at the end of the course of study might turn the direction of teaching entirely towards the examination and turn the law faculties into an even greater absurdity, into virtual “cram schools” and “study centres”.

Finally, I must also voice the following criticism. Law faculties have been set up everywhere, one in every city and dozens in the big cities. Yet, with no planning whatsoever as regards teaching, the emergence of so poorly trained but so numerous a body of law graduates was allowed to happen. Today’s solution is to cut them away with a scalpel. But what is needed first is to prevent such law faculties from being opened, and to close those law faculties that cannot meet the objective criteria to be set by the Council of Higher Education (YÖK). This examination may have the result that faculties showing a very low success rate in entry to the legal profession are no longer chosen and disappear. We may thus see that, by natural selection, so to speak, law faculties decrease in quantity but reach a higher level in quality. This too should be noted as a possible positive outcome of the examination.

The fact that students currently enrolled in law faculties will not be subject to this examination shows, however, that the inflation in law graduates will continue for a long time.

I hope that everything turns out as well as is hoped. But I should like to emphasise once more at the very end what I said at the very beginning. Unless there is a revolution in the thinking of those who apply the law, we can neither carry out reform nor get anywhere merely by changing the rules.