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[OPINION] Not the top court but Erdoğan will seal the fate of the pro-Kurdish HDP

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Ali Yıldız*

The Turkish Supreme Court of Appeals’ Chief Public Prosecutor Bekir Şahin on March 17, 2021 lodged a case for the closure of the pro-Kurdish Peoples’ Democratic Party (HDP) with the Turkish Constitutional Court. Şahin also asked the court to ban more than 450 Kurdish politicians from politics for five years. The indictment charges the pro-Kurdish party and its members with “aiming to disrupt and destroy the … unity of the state with their statements and actions.” The prosecutor claims “[The HDP] has never sided with Turkey in any national issue, and to the contrary has chosen to side with those against Turkey.”

Şahin was appointed as the Supreme Court of Appeals’ chief public prosecutor by President Recep Tayyip Erdoğan. It would not be unfair to call him hand-picked because Erdoğan appointed him despite his finishing fourth in the election for the post, ignoring the democratic choice of electors who were his fellow judges and prosecutors.

After the HDP presented its preliminary defense to the court, the prosecutor’s office submitted its opinion, urging that the objections and arguments raised by the HDP be dismissed and the HDP be permanently closed. The prosecution argued that the HDP “has become a focal point of acts against the indivisible integrity of the state.” The request for a political ban was also reiterated.

Why has the HDP been targeted?

The Constitutional Court has shut down pro-Kurdish parties several times in the past. A total of seven Kurdish parties have been either closed by the court or dissolved themselves to avoid closure. Similarly, two Islamist parties that are regarded as the predecessors of the ruling Justice and Development Party (AKP) were also closed by the Constitutional Court. And Erdoğan’s AKP itself avoided closure in 2008, prompting Erdoğan to take the Constitutional Court under his control.

Erdoğan constantly said in the past that he was against the closure of political parties. “Individuals, not an entire party, should be punished for their mistakes. … It is unjust to penalize an entire party because of its leader or one member,” said Erdoğan. Yet he has refrained from expressing his opinion on the closure case against the HDP.

Erdoğan’s grudge against the HDP and its former co-chair Selahattin Demirtaş culminated in 2015 when Demirtaş launched a political campaign prior to the June elections, telling Erdoğan, “We won’t let you become president.” The campaign was a success as the AKP lost its majority in parliament for the first time since it came to power in 2002, triggering a new election. After this political campaign, the HDP and its members became the target of the AKP, leading to the imprisonment of Demirtaş and scores of deputies and mayors from the Kurdish party, and eventually to the closure case.

With the HDP closure case underway, the AKP strengthened its influence at Turkey’s top court, which has exclusive jurisdiction over cases for closure/dissolution of political parties. On Jan. 20, 2022 the AKP-controlled parliament elected lawyer Kenan Yaşar to the Constitutional Court for a 12-year term. Yaşar, who was chair of the Çorum Bar Association, was also an executive at the AKP provincial branch in the same city and a former candidate for parliament from the AKP.

AKP’s longstanding court packing strategy

The AKP and its chairperson President Erdoğan have never ignored the importance of controlling the judiciary to remain in power. To this end, they carried out so-called constitutional reforms in 2010 and 2017 to change the structure and judges of the Constitutional Court. The court currently consists of 15 judges, 12 of whom are either selected or appointed by the president, while three are elected by parliament. As Erdoğan’s AKP has been controlling the parliament since 2002 and holding the presidency of the republic since 2007, 12 of the incumbent judges were appointed either by former president Abdullah Gül (5/15) or by the incumbent president, Erdoğan (7/15) — both founders of the AKP — while the remaining three were elected by a parliament controlled by the AKP.

Without doubt, the political affiliation and personal loyalty of the candidates have been the main factors in these appointments and elections. As the AKP no longer hides its desire to gain absolute control over the judiciary, the partisanship of the recently appointed judges is more significant. For instance Yıldız Seferinoğlu, who was appointed to the court in 2019, had been a member of parliament from the AKP between 2015 and 2018. Selahaddin Menteş and Basri Bağcı were deputy ministers of justice in the AKP government before their appointment to the Constitutional Court.Former İstanbul chief public prosecutor İrfan Fidan, who was appointed to the top court by Erdoğan last year, was responsible for several politically motivated prosecutions and sham trials to suppress critics of the government. One of those cases was that of businessman and philanthropist Osman Kavala, which triggered an infringement procedure against Turkey at the Council of Europe as Turkey did not comply with a ruling from the European Court of Human Rights (ECtHR) for his release. The infringement procedure bears the risk of Turkey’s expulsion from Europe’s most important human rights body.

As a result of these political appointments, the Constitutional Court has been packed with pro-AKP figures, and it eventually has aligned its judgments with those of the executive body, namely the will of President Erdoğan. The AKP’s hand-picked judges at the top court will decide on the fate of the party’s rival, the HDP.

It is hard to predict the outcome of the ongoing case as a decision from the court will not be based on law, facts or evidence. On the contrary, many domestic and international factors including the AKP’s political strategies will determine the outcome. From its initiation to the end, the closure case against the HDP has been designed to serve the political interests of the AKP and its leader Erdoğan and has nothing to do with the rule of law or the right to a fair trial. In a nutshell the AKP has put its rival on trial, and it will make a decision in line with its own political interests.

* Ali Yıldız is a Brussels-based lawyer and founder of The Arrested Lawyers Initiative.

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