As a candidate country to the EU, the alarming situation in Turkey in the areas of democracy, rule of law and fundamental rights has been high on the agenda of the EU in recent years. The EU/Turkey dynamic is a love and hate relationship exceeding half a century, during which Turkey has been seen as a key strategic partner to the EU in areas such as economy, energy security, counter-terrorism and migration. The EU cannot and should not give up on a country, which has a history full of tough struggles to pave the way for democracy. However, it is without question that the fundamental liberties of the 96-year old Republic have never before been subject to deterioration at this level. We are talking about a key strategic partner of the EU putting more than 150 journalists, co-chairs and tens of elected mayors of HDP (the pro-minority People’s Democratic Party), the head of the dissolved association of judges (YARSAV) and president of Progressive Lawyers Association (CHD) behind bars, as well as more than 100,000 others under the pretext of terrorism-related charges. Not surprisingly, what we see today is a country that is ranking 109th among 126 countries in the rule of law index of 2019, whereas, it was 59th even in 2014 in the aftermath of Gezi protests and anti-corruption probes.

The background of this deterioration has been perfectly enshrined with all the facts and figures in the report submitted by The Law Society of England and Wales to the UN on behalf of an international coalition of legal organisations. Therefore, I prefer to draw attention to the untold or less-elaborated side of the story: the EU’s approach to the appalling situation in Turkey.

Claiming to be based on common values of democracy, human rights, rule of law, pluralism and gender equality, the EU’s challenge now is to define its relationship with a country where the values of democracy are so eroded that dissenting voices are stifled, journalists, judges, lawyers, those who aspire for peace and those who protest against children dying, are decreed terrorists. Furthermore, the challenges are not limited to these fundamental principles only. For the first time in the history of NATO, the Turkish government’s attitude in international politics and military actions in Syria has sparked discussion on the ‘brain death’ of the alliance. In the past, Turkey’s ties with the EU and NATO are the very things which have made it different from other countries such as Myanmar, Iran, Sudan and the Xinjang (East Turkistan) region of China, who neither claim to achieve advanced democracy nor had a candidate status for full membership to the EU.

Given the country’s accession negotiations to the EU are de-facto suspended since 2016, we hear some EU officials voicing alternative ways to tackle the complicated issues in this relationship. Nowadays, upgrading and updating of the Customs Union Agreement with Turkey, along with talks on visa liberalisation are strongly suggested by some think-tanks and scholars in Brussels as the way forward. The argument underpinning this policy is presented as leading Ankara to democracy and rule of law through economic sweeteners. Indeed, a study conducted in 2016 by the European Commission suggested that the benefit of such an agreement to Turkey would be €12.5 billion -meaning 1.44 percent of its GDP- whereas the benefit for EU countries would be 5.4 billion euros, which amounts only to 0.01 percent of the EU’s GDP.

At this point, the question to be asked is: would such a move really contribute to the rule of law in Turkey? Taking into account that the only legal measures to be put in place for upgrading of the Customs Union Agreement would be related only to “dispute resolution in trade relations” and “public tender issues”, one would find it more rational if defenders of upgraded customs union with Turkey say it openly that it is ‘high politics’ at stake rather than pursuit of the rule of law. The pursuit of this policy gives Erdogan exactly what he wants; conducting the relations only on an economic basis and putting aside the accession talks on judiciary and fundamental rights. In return for this, Erdogan is expected to keep 3.7 million Syrian migrants outside the territory of the EU. However, the reality is that it would not be very diplomatic and humane if this real motive was put forward. At least, this is how it appears from my point of view based on my experience as a jurist who was actively and formally involved in Turkey’s accession negotiations to the EU, especially in the area of the judiciary and fundamental rights.

In order to see the bigger picture, it is useful to look at the protest letter written by the Joint Platform of European judges comprising the European Association of Judges, MEDEL, AEAJ and Judges for Judges in late October 2019. This Platform appealed to all European institutions to cease any cooperation with the Turkish judiciary until the rule of law is restored in the country and to use all means to convince Turkey to end its witch-hunt against judges and prosecutors. All European Institutions were urged in the letter to persuade Turkey to:

  • Stop procedures where there is no proof of any involvement in criminal offence;
  • Free all political prisoners and re-open final proceedings which had ignored basic international standards of a fair trial;
  • Reinstate unduly/unfairly dismissed judges and prosecutors and return their confiscated assets; and
  • Return to the principles of a fair trial as established in the European Convention of Human Rights and Fundamental Freedoms.

EU Commissioner Johannes Hahn, in response to this letter, replied to the presidents of the judges associations last November, confirming that he shared the same concerns regarding the rule of law in Turkey. However, less than one month after Commissioner Hahn’s letter, the message from the EU Commissioner for “European Values” during his first visit to Turkey was that: “The EU remains fully committed to the implementation of the EU-Turkey Statement of 16 March 2016.” This statement implied that the largely criticised migration deal is the first and the most important thing in the agenda of the new Commissioner for “Values” instead of the fundamental values enshrined in Article 2 TEU. At the end of the day, It is extremely difficult to reconcile the rhetoric regarding Article 2 TEU with the ‘requirements of realpolitik’, especially in the face of Article 3which stipulates that in its external relations, the Union shall uphold and promote its values.

This co-relation between Articles 2 and 3 of TEU is perfectly summarised in the words of Stefan Lofven, Swedish Prime Minister: “For every democratic principle we weaken in the EU, the EU’s voice in the world is equally weakened”. From this point of view, it can be argued that the defects in the EU’s current Turkish policy stems from the Union’s inability to solve the rule of law-related problems in its own member states Hungary and Poland, to name but a few. Yet, at least half the population of Turkey is expecting the values-based approach in EU-Turkey relations to be fully realised, and for there to be a renewed focus on the principles of democracy and the rule of law in Turkey. Ultimately. Turkey as a country where these values are restored, would contribute much more to the economy and security of the EU and act as an indispensable partner.

Despite the darkness in the domestic and international arena, there are so many people in Turkey who remain committed to fundamental values. Ahmet Altan, the world renowned journalist and novelist, who was recently awarded with this year’s Geschwister-Scholl Prize, is a symbolic name in this struggle and stands alongside others such as the tens of elected mayors from the HDP (the pro-minority People’s Democratic Party), the at least 150 journalists currently behind bars, the almost 4,000 dismissed judges and prosecutors, 2,300 of which are emprisoned. Though all the reports by the EU, the UN, Council of Europe and countless international NGOs say that there is no independent judiciary in Turkey, there are many figures like Metin Feyzioglu (Head of the Union of Turkish Bars Association) who turn a blind eye to all this barbarism including the arrest of more than 500 lawyers. Having been among the first voices to defend the Erdogan regime since the crackdown began in 2016, Mr Feyzioglu still feels no shame saying that “Turkey is a democratic state governed by rule of law, there is an independent judiciary in Turkey and he had full confidence in Turkish courts”.

Ahmet Altan has been rearrested only 7 days after being released from the prison he stayed for more than three and a half years as a result of immediately after his release, writing: `Once you have seen that cave, witnessed the suffering of innocent people…, you can’t possibly be ecstatic about leaving prison. You feel like an accessory to a terrible crime. As a prisoner, you are the victim of injustice; once you leave, you become an accomplice.` In the same vein as Henry Thoreau’s reply from prison to his friend Waldo Emerson in America of the 1950s, the real question is “what are you doing out there?”: is the EU willing to be an accomplice at the cost of reducing its “values” to an absurdity; or restoring a Europe of values?