ABSTRACT
Introduction The transformation of the Turkish judicial system within the context of Turkey’s accession to the European Union (EU) shows the judiciary to be one of the most significant policy areas to demonstrate the reach, as well as the constraints, of “Europeanization” in the accession process. It can be argued that although Turkey provides a striking example in the analysis of Europeanization of the judiciary within the accession process, it cannot be considered an exceptional case. Despite the fact that research in this area is fairly new for previous accessions and for the Eastern enlargement of the EU, uneven results in all accession countries, depending on state structures, legal and judicial traditions and political culture, have been observed in the still scarce literature on the judicial Europeanization aspect of EU enlargement policy.1 Studies in this area require an interdisciplinary approach in order to embrace not only the legal but also the socio-legal, historical and cultural aspects of Europeanization.2 Findings almost always demonstrate that this proves to be one of the most selective and hard-to-sustain areas of progress and transformation, even in countries which have acceded to the Union.3 Moreover, it has also been argued that “differential empowerment of elites through the EU accession incentives can account for the upward and downward movements in rule of law standards in accession countries” and “when and where the domestic political actors have seized the opportunities arising from EU . . . accession conditionality ‘democratic institutional change has occurred’ ” (Noutcheva and Düzgit 2012, p. 60). Yet the empowerment of Europeanizationoriented political or bureaucratic actors through enlargement conditionality does not prevent inconsistent judicial application of legal and political reforms on its own. In that vein, domestic empowerment has not worked in an even way due to the ruling elites’ domestic incentives for partial reform or non-reform, as pointed out by Noutcheva and Düzgit, and therefore EU conditionality might prove to be insufficient to explain the steps for reform in the judicial mechanism and its positive or negative outcomes (Noutcheva and Düzgit 2012, p. 60). In that context, the outcome of Europeanization in general might sometimes be unintended, exhibiting itself in the judicial system of an accession country in
the inconsistent application of European norms and standards – at least for a transitional period – which would in turn result in a loss of the perception of legal predictability and certainty, which might have serious consequences for effective and genuine democratic governance. Turkey is arguably going through this stage of transformation with still a considerable way to go when it comes to reshaping its judicial structures and practices so as to embrace the European values, norms and standards of an independent, impartial and efficient judicial mechanism, which is imperative for a functioning system of rule of law and democratic governance. Yet enhancement of the judicial capacity in a candidate country is of crucial importance for the EU, since this is, first of all, a component of rule of law, which is one of the essential aspects of the Copenhagen political criteria. Accession to the EU presupposes the existence of an independent and impartial judicial system to ensure the acceding country has a stable and democratic system. In that context, the independence, impartiality and efficiency of the judiciary are regarded as indispensable for “the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and the protection of minorities.”4 Moreover, not only a genuine system of rule of law but also the effective protection of human rights and consolidation of democratic governance necessitates a well-functioning, efficient, impartial and independent judicial system. Second, since the judicial application of EU law falls largely within the responsibility and jurisdiction of national courts, the EU expects candidate countries to establish well-functioning judicial mechanisms equipped with the necessary legal knowledge and understanding of the EU’s legal rules and principles and with the technical capacity to apply EU law within their jurisdiction in a uniform and correct manner.5 This requires an independent, impartial and efficient judicial system where the professionalism of the judiciary is increased, access to and administration of justice is improved, and the management of the court system is strengthened.6 With the candidacy status of Turkey being declared in the European Council Helsinki Conclusions in 1999, Turkey’s efforts to fulfil the Copenhagen criteria have accelerated, especially regarding the political component thereof, consisting mainly of the amendment or enactment of legislation comprising legal rules to be applied for enhancing democracy, the protection of human rights and rule of law. As we will discuss below, those changes also included reforms of the judicial mechanism, albeit to a limited extent, which were crucial for the proper application of the new legislation. Moreover, as of 2005, the EU acquis chapters were revised in order to include a specific heading of “Judiciary and Fundamental Rights” calling for the accession countries to align their legislation and practices with European norms and standards. As far as the EU is concerned, the consolidation of the principle of rule of law in a candidate country is related to both the Copenhagen political criteria and Chapter 23 of the accession negotiations, i.e., “Judiciary and the Fundamental Rights.” In that respect, the EU enumerates the basic components of that chapter as (1) the independence, impartiality, professionalism/competence and
efficiency of the judiciary; (2) anti-corruption, including both a legal framework (domestic and international) and institutional capacity; and (3) fundamental rights. For Turkey, in order to fulfil the requirements of Chapter 23 and to a certain extent Chapter 24 (“Justice, Freedom and Security”)7 and the political criteria in general, judicial reform has come into the limelight following the opening of the accession negotiations in 2005. Rule of law and judicial reform are highlighted as important elements of the Europeanization process, especially in the aftermath of the accession of Romania and Bulgaria in 2007 due to the perception of their being allowed to accede to the Union despite continuing problems regarding the judiciary and corruption. Moreover, on the basis of the Enlargement Strategy endorsed by the Council in December 2011, the recent Negotiating Frameworks, such as the one prepared and adopted for Montenegro in 2012, underline the significance of Chapters 23 and 24 in the accession process in various paragraphs and specifically state that “Given the challenges faced and the longer term of the nature of the reforms, these chapters are expected to be among the first to be opened.”8 In that context the European Commission has underlined once again the significance of rule of law in the accession process in Turkey’s 2013 Progress Report. According to the Commission,
The rule of law is now at the heart of the enlargement process. The new approach, endorsed by the Council in December 2011, means that the countries need to tackle issues such as judicial reform and the fight against organized crime and corruption early in accession negotiations. This maximizes the time countries have to develop a solid track record of reform implementation, thereby ensuring that reforms are deeply rooted and irreversible. This new approach is a key element of the negotiating framework for Montenegro and will shape the Commission’s work with the other enlargement countries.9
