QUESTIONS AUX PARTIES
Sur la base des griefs communiqués selon la liste en annexe
1. a) Les placements en détention provisoire des requérants ont-ils eu lieu « selon les voies légales », notamment dans le respect des garanties procédurales reconnues aux magistrats en droit interne ?
b) Peut-on considérer que les requérants ont été placés en détention sur la base de « raisons plausibles de soupçonner » qu’ils avaient commis une infraction (voir, notamment, Fox, Campbell et Hartley c. Royaume-Uni, 30 août 1990, § 32, série A no 182) ?
Les parties sont notamment invitées à répondre à cette question en tenant compte,
– d’une part, de l’article 100 du code de procédure pénale, lequel exige « des preuves concrètes qui démontrent l’existence de forts soupçons » quant à la commission de l’infraction reprochée,
– d’autre part, du fait que la Cour constitutionnelle a fondé l’existence de soupçons plausibles sur des éléments de preuve qui aurait été découverts postérieurement à la décision de placement en détention des requérants.
2. Peut-on considérer que les magistrats ayant ordonné le placement en détention provisoire des requérants et ayant examiné les oppositions formées contre cette mesure ont rempli leur obligation de fournir des motifs pertinents et suffisants à l’appui de la privation de liberté en question (voir, notamment, Buzadji c. République de Moldova [GC], no 23755/07, § 102, CEDH 2016 (extraits)) ?
3. La durée de la détention provisoire subie par les requérants est-elle compatible avec la condition de jugement dans un « délai raisonnable », au sens du paragraphe 3 de l’article 5 de la Convention ?
4. Les procédures par le biais desquelles les requérants ont cherché à contester leur détention étaient-elles conformes aux exigences de l’article 5 § 4 de la Convention dans la mesure où les intéressés :
– se plaignent du manque d’indépendance et d’impartialité des juges de paix appelés à se prononcer sur leur détention, et dénoncent le fait que les oppositions sont aussi examinées par des juges de paix,
– allèguent une atteinte au principe de l’égalité des armes, aux motifs que leurs demandes d’élargissement et leurs oppositions ont été examinées sans audience, sur la base du seul dossier, et que l’avis du procureur ne leur a pas été communiqué,
– soutiennent que, en raison de l’impossibilité d’accéder aux pièces du dossier, ils ont été empêchés de contester efficacement leur détention,
– se plaignent du fait que leurs demandes d’élargissement et les oppositions formées par eux n’aient pas été examinées ou qu’elles aient été examinées tardivement,
– soutiennent que les décisions de maintien en détention ne leur ont pas été notifiées ou notifiées tardivement, de sorte qu’ils n’ont pas pu former opposition contre ces décisions,
– se plaignent de n’avoir pas bénéficié de l’assistance effective d’un avocat et de facilités pour contester leur détention,
– enfin, dénoncent le délai mis par la Cour constitutionnelle pour examiner leurs recours individuels.
5. Les requérants avaient-ils, comme l’exige l’article 5 § 5 de la Convention, un droit effectif et sanctionnable en justice à obtenir réparation pour leur détention, qu’il estime contraire à l’article 5 §§ 1, 2, 3, 4 ?
cf. document entier
Original in French, translated with www.DeepL.com/Translator
QUESTIONS TO THE PARTIES
On the basis of the objections communicated in accordance with the list in the Annex
1. (a) Did the applicants’ pre-trial detention take place “in accordance with the law”, in particular with due regard for the procedural guarantees afforded to judges under domestic law?
(b) Can the applicants be considered to have been detained on the basis of “reasonable grounds to suspect” that they had committed an offence (see, in particular, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A No. 182)?
In particular, the parties are invited to answer this question taking into account,
– on the one hand, Article 100 of the Code of Criminal Procedure, which requires “concrete evidence demonstrating the existence of strong suspicions” as to the commission of the offence charged,
– on the other hand, the fact that the Constitutional Court based the existence of plausible suspicions on evidence that was discovered after the decision to detain the applicants.
2. Can it be considered that the judges who ordered the applicants’ remand in custody and examined the objections lodged against this measure fulfilled their obligation to provide relevant and sufficient grounds in support of the deprivation of liberty in question (see, in particular, Buzadji v. Republic of Moldova[GC], No 23755/07, § 102, ECHR 2016 (extracts))?
3. Is the duration of the applicants’ pre-trial detention compatible with the requirement of trial within a “reasonable time” within the meaning of Article 5, paragraph 3, of the Convention?
4. Were the procedures by which the applicants sought to contest their detention in accordance with the requirements of Article 5 § 4 of the Convention in so far as the persons concerned:
– complain about the lack of independence and impartiality of justices of the peace called upon to rule on their detention, and denounce the fact that objections are also examined by justices of the peace,
– allege a breach of the principle of equality of arms, on the grounds that their requests for enlargement and their objections were examined without a hearing, on the basis of the case file alone, and that the prosecutor’s opinion was not communicated to them,
– claim that, due to the impossibility of access to the documents in the file, they were prevented from effectively challenging their detention,
– complain that their requests for enlargement and objections made by them have not been examined or have been examined late,
– claim that the decisions to continue detention were not notified to them late, so they were not able to lodge an opposition against them,
– complain that they have not received effective legal assistance and facilities to challenge their detention,
– finally, denounce the time taken by the Constitutional Court to examine their individual appeals.
5. Did the applicants have, as required by Article 5 § 5 of the Convention, an effective and punishable right in court to obtain compensation for their detention, which he considers contrary to Article 5 §§ 1, 2, 3, 4?
see full document
Extrait de l’arrêt
115. À la lumière de ce qui précède, la Cour conclut que l’extension de la portée de la notion de flagrant délit par la voie jurisprudentielle et l’application du droit interne par les juridictions nationales en l’espèce posent problème non seulement au regard du principe de sécurité juridique (paragraphe 103 ci-dessus), mais apparaissent aussi manifestement déraisonnables. Il s’ensuit que la mise en détention du requérant, qui a été ordonnée sur le fondement de l’article 100 du CPP, dans des conditions qui ont privé l’intéressé du bénéfice des garanties procédurales accordées aux membres de la CCT, n’a pas eu lieu selon les voies légales, au sens de l’article 5 § 1 de la Convention.
119. À la lumière de ce qui précède, la Cour conclut que la mesure de détention provisoire du requérant, qui n’a pas été prise « selon les voies légales », ne peut pas être considérée comme ayant respecté la stricte mesure requise par la situation (voir, mutatis mutandis, Mehmet Hasan Altan, précité, § 140). Il y a donc eu violation de l’article 5 § 1 de la Convention à raison du défaut de légalité de la mise en détention provisoire du requérant.
139 … Il convient à cet égard de constater que, dans le cadre de la présente affaire, la Cour est appelée à examiner la question de savoir si la mise en détention du requérant le 20 juillet 2016 était fondée sur l’existence de raisons plausibles, et non la question portant sur la persistance de pareilles raisons relativement au maintien en détention de l’intéressé. À cet égard, selon la jurisprudence constante de la Cour, l’obtention ultérieure de preuves à charge concernant le chef d’accusation pouvait certes renforcer les soupçons associant le requérant à des infractions de type terroriste, mais non constituer la base exclusive de soupçons justifiant sa mise en détention (voir, dans le même sens, Fox, Campbell et Hartley, précité, § 35). En tout état de cause, pour la Cour, l’obtention ultérieure de telles preuves ne dégage pas les autorités nationales de leur obligation de fournir une base factuelle suffisante pouvant justifier la mise en détention d’un requérant. Conclure autrement irait à l’encontre du but poursuivi par l’article 5 de la Convention, à savoir la protection de l’individu contre une privation de liberté arbitraire ou injustifiée.
145. Compte tenu de l’analyse à laquelle elle a procédé ci-avant, la Cour estime que les pièces qui lui ont été présentées n’autorisent pas à conclure à l’existence de soupçons plausibles au moment de la mise en détention du requérant. Le Gouvernement n’ayant pas fourni d’autres indices ni aucun « fait » ou « renseignement » propres à la convaincre qu’il existait des « motifs plausibles », au moment du placement en détention du requérant, de soupçonner ce dernier d’avoir commis l’infraction reprochée, elle estime que ses explications ne remplissent pas les conditions exigées par l’article 5 § 1 c) en matière de « plausibilité » des soupçons motivant la mise en détention d’un individu.
149. Partant, la Cour conclut qu’il y a eu en l’espèce violation de l’article 5 § 1 de la Convention à raison de l’absence de raisons plausibles, au moment de la mise en détention provisoire du requérant, de soupçonner celui-ci d’avoir commis une infraction.
AFFAIRE ALPARSLAN ALTAN c. TURQUIE
Today is August 12, 2017. So the 1st anniversary of my imprisonment. Innocently, in a tiny room, between four walls, I spent a whole year, a whole year cost me such as a life time, apart from my loved ones. During my stay here, I always thought what I did the same day last year. Last year we were at the festival, we celebrated the birthday of my children in here, we welcomed the newyear eve at Ayder Plateau, we were at Kaçkarlar at that time, this time we were together with our friends … From now on, every day when I remember last year, I will know “I was among these four walls”. Tomorrow and every day afterwards … Because I have had to spend every special and beautiful day that people can live in a year with their loved ones, I had to spend separately from them. For example, I was not there neither my wife’s nor my three daughters birthdays. I did not see the first steps of my youngest daughter. I could not be with them on two festivals and now the third is coming. Though, for us, the feast day will be the day I will be liberated by this unjustness come to an end. But it is not clear when that day/holiday will come.
This is the only thing that has changed in a year; now I am not among the four walls in Çanakkale, but between the four walls of Þanlýurfa. One day they would not have found the height of the walls in Çanakkale enough and they would suddenly barge into my ward and say, “Pack your belongings Yigit, You are going.” Am I going to another ward or another prison, no one responded. Then why do I go, on which reason I am being taken no one explained. Naturally I got worried. After all, there is no official decision shown to me, neither my family nor I was informed, no official notification was served. It’s not clear they are going to either abduct me or kill me. That’s why I resisted. I told them that they had not my consent. This time I was exposed to violence. They dragged me on ground, my arms were twisted. It is not possible to resist all those people. I desperately gathered my belongings and after a long time realized that I was taken to Þanlýurfa. In the beginning, I was already torn from my beloveds and put between four walls. I had to be content myself to see my wife and my children, forty-five minutes a week. Now I am completely separated from my family. I still do not know the reason for this transfer. But ultimately it is an exile for me.
At first I naively believed, that a mistake was made and when the dust settles it is going to be understood that I was innocent and that this mistake would be corrected. But now I see it and I see there was no wrongdoing. Everything was part of a deliberate plan. Oh! are you the one who does not unconditionally and unquestioningly obedient to us, are you the one who does say I will stay independent and impartial, are you the one who does act as if orders to our demands. Then go to the prison, stay there for a few years; both come to your senses and be a lesson as well as those who are reluctant to enter under our oppression … This is exactly what is meant to be said.
Now I think there is intention. Because after a year, I finally understand this clearly from my indictment. It would be more accurate to say it is an announcement that really outlines my innocence and screams my guiltlessness than an indictment that should be nothing but allegation(s) that accuses me. Because the indictments that I know of includes the crimes claimed to be committed individually. However, mine writes that I did not use ByLock, I did not participate in the conversations, I did not give financial aid such as benevolence or scholarship, I did not deposit money to a certain bank, I did not read their books receive training in their educational institutions, I did not send my children to their schooIs, I did not watch their sermons.
So you’re wondering why I’m not being released and returning to my job. Let me explain: because there is no point in what I do or do not do for them. The important thing is whether I do or I do not obey them. Because I know a lot of judges who are still in profession though they do all these things which was written in my indictment. Those who have regrets for what they did in the past are now crying, such “we did, please you do not as we, we’ll do what you are going to say to us”. And unfortunately these colleagues are almost captive. Those who has no regrets in their past actions like me, are subjected to this treatment because they say “I will do what law orders, not what you want.” It is sad but true it is what it is.
The prosecutor who has to bring evidence, obligated to open a case against me, he nearly would accuse me of “having eyebrows above my eyes”. He could not say I did not use ByLock because he could not, but instead he claimed that I have contacted ByLock users. Of course, he never mentioned about who these people are, how many times I contacted them. By July 15, I was not even aware of the existence of the program bylock. Who knows if there is such a program in the person he is calling for? If we examine the phone of the prosecutor who wrote it as a crime, how many of these communications did we find? I’m sure there will be many.
Then the prosecutor took a witness statement. Included to the indictment. The denouncement mail sent by a woman who I have not heard of in my life is exactly like this: “Yiðit Kaçar, the prosecutor of Artvin Hopa, was arrested within the scope of the FETO / PDY investigations after 15 July”. Not know whether to laugh or cry? What is this now? Confidential information about me? Is it a crime I’m working on? Did anyone not hear that I was arrested? Someone that a crass wrote this ridiculous thing in order to be informant if it be so, well then could the prosecutor not find anything else, but he took this ridiculous statement and put it in my indictment ?
Here is the pathetic situation that judiciary in right now my friends. What could I say; what a shame. The judiciary no longer finds crime and writes in indictment but returns to an institution that has invented crime and put it in an indictment. At least, do not try to deceive a lawyer and prosecutor who worked for years with this indictment. I’ve personally written thousands of them myself. But neither I did not write nor I saw like this sloppy one. It is hard to believe that we have the same legal education in the same state as the prosecutor who wrote this. Of course, if you try to write something with orders and instructions instead of writing something based on law and statutes, it is inevitable that such a ridicule will emerge on the grounds of coercion.
I have been held in prison for a year because of the nonsense you read in my indictment. And I am not going to be released easily. It is for a reason to be held prisoners this long. We are not being released to create and strenghten perception of guilty in the eyes of public. When they held prisoners for a long time, they think the public will think, “It was indeed they were criminals, or they would be released until now.” That’s why they do not.
That is why they are writing an indictment even if it is far-fetched. That is why they will make trials, even if they are perfunctory. I do not expect they will say to anybody who has been held innocently for more than a year, after that phase, “sorry, we did it wrong”. The wolf set his mind on eating the lamb once. So save your breath. But I do know: I don’t care neither this pro forma trial they will make nor “assured verdict”, that they will give. As long as I do not be condemned in your heart. My friends, never lose their beliefs of that I’m innocent or elseI would not be a
terrorist to be declared as a terrorist by somebody’s fake proof
(translator known by editor)
Here is the letter:
To my friends; We say, “justice will prevail sooner or later,” and “Justice delayed is justice denied”…
But how much do these two statements contradict each other whereas? If justice delayed is justice denied, how sooner or later it can prevail ? how one calls justice that prevails so late ?
I have spent 11 months in prison today. How much longer do I have to wait for this justice to prevail itself? If I release tomorrow, will this be fair?
And I am not going to be released tomorrow. My indictment was written a month and a half ago, but heavens know why it has not yet been served to me by the court. As far as I can tell, the first hearing date is 14 December. I mean, I am almost going to stand up before the judge for a year and a half after I was arrested. Is this justice now?
At first [when i was in duty] I was very angry with those runaways and fugitives, I was asking if they were guilty or not. I do not know if they are guilty or not, but they know better than me that there is no justice in this country. Everyone knows the phrase called “submit oneself to the justice.” I believe that the justice I have submitted had run away from this country before everyone…
Everthing is getting worse and worse when in fact i think that it will be normalized and gettin better. Four months ago they took our radios for an interim period, after a while they said they would give it back. Now they say they will not give it back anymore. Under these difficult circumstances, I had a tiny music taste. They begrudged it too. To crown it all they took my wristwatch which I used for 11 months [in prison]. The Reason; My watch has a calendar. They really are trying to drive us crazy. Or is there could be a logical reason for these ? Why would they afraid of a radio or a watch? I have also reported myself to the prosecutor. If I am using this radio and watch for illegal work then and there is evidence in the hands of the state about it, then start an investigation about me. Make a case. Judge and punish me. If there is no evidence, give back to me the radio and the watch. I said I do not accept such a blanket ban. Do you think they would give my radio and watch? Of course not.
I have not been worth as much as a dog in this country. You ask why? In the winter we passed, a dog fell into the well, but everyone was mobilize d. You will remember that after about a week of work, they rescued and put its name as “well”. He stayed a week on the first page of the newspapers and found itself in the main news bulletins.
I have not been in a week, but I have been at the bottom of a well for exactly 11 months. Do you read a newspaper about me or innocent judges and prosecutors like me? or Do you watch us in prime time news ? The main opposition leader, Mr. Kılıçdaroğlu, was asking “where are the public prosecutors of this country” at today’s group meeting. I’ve been screaming they are in prison for months. Does he not know that? Yes, I was only be a prosecutor in the Republic and now I have been paying for it in prison for months. They buried me alive. I never know how long I can endure this unlawfulness, persecution and injustice. Now i have no power left to bear for these injustices.
Am I not patient enough for someone to never committed a crime? Why do I have to settle for 45 minutes a week while I have the rights for being always together with my loved ones? How much longer do I have to watch them ruin my life? For God’s sake, how could be the date of the first hearing given five and a half months after the indictment? We’ve been doing the same job before. I never remember having to postpone a procedure for more than a couple of months. Because we were afraid to answer to inspector. I wonder where their carelessness come from nowadays, and where is this kind of courage they are taken from. Surely the day will come, they will give the account of these injustices, will it take away the injustices made to me, will they bring back the lost days, unbeknown …
Many of the people to whom we have been tried for the same offense have begun to stand trial. I’m getting their news. As far as I can see, the whole process is just the fulfillment of the formalities. For example, a friend tried to tell to the court that he was innocent for hours. The court has listened without interruption. Then “per curiam”: “decided to prolong the detainee’s status in prison, for the next trial to be made in November …” Well then why not a single question was asked by the board to the one they judge? So they already cut his ticket. They do not interrupt the defence in order to be able to say, “see, we gave you a good right of defense”. The judge who really wanted to solve the case would not ask a question? What is it you did not listen to and you did not tried to enlighten then gave a right of defence or not? The purpose satisfy the form requirements of judging. Otherwise, the decision is already made. I really wonder about the thoughts of my friends who have sincerely devoted theirselfs to political power. Do you not know these, or do you not see these things as persecution? At least I ask because you know me. Do you deem proper that done to me? Or do you think a few innocent’s rights and their victimization can be ignored in such a time? Know that the things that have been done to me are a very small part of their cruelty, and unfortunately you are also partners to this persecution, whether you know or not. I do not know about others but my wail is enough for them …
(author know to editor)
@JHofTURKEY shared a tweet flood, which includes some quotation from a newspaper interviewed with three judges’s wifes (two of them also dismissed judges).
They live in Turkey, and seem to me crying for you for help to reach them. I am sure the jounalist will happly give their information, and urge you to help them, show they are not alone.
1- Ayse says My husband is in a cell for months, never sees the sky.
2-She continues “as if we were buried alive since the coup attempt.”
3-“a five square meter cell, with a toilet for 60 persons.” adds Hatice.
4-“presented to a bloody young prosecutor, arrested them as on the line.” says Hatice 5-the prosecutor says “Your file is empty. There is only one paper from the HSYK that you ar
e suppose to be arrested.”
6- A respected judge is the next day becomes a terrorist” says Ayse
7-Ayse say it was told ” But the content of the file is secret!”
8-Hatice argues “the huge influence of politics on the courts. Whoever does not obey it, found himself in a prison. The others makes a career
9-Hatice argues “In her prison, people soon began to wonder about how to get rid of this accusation without a trial.”
10-Hatice argues, “If you are against, you will be stigmatized as a FETO.”
11- Mehmet Yilmaz promised to judges if they provide useable statements for prosecution, will be granted immunity, and return to bench.
12-They both says “the real reason behind the arrest warrants is their commitment to the justice”
13-Their kids have often weeping come out of school because her father as an “Enemy of Turkey”, therefore they have been abused.
Source for flood:
Source for whole news as English: https://turkishjusticehouse.wordpress.com/2017/07/21/from-judges-to-terrorists/amp/
Source for original news as German: http://m.fr.de/politik/tuerkei-von-richtern-zu-terroristen-a-1313966?GEPC=s3
[Author known by editor]
After Charlie Hebdo massacre, like many media outlet in the world, Cumhuriyet Daily also had published a section from the first issue of the Charlie Hebdo magazine following the masssacre. After this solidarity in terms of press freedom, Cumhuriyet had faced several difficulties including search of delivery trucks going out from the press houses.
In the protests taking place in front of Cumhuriyet, some slogans “Kuaşi brothers are our honour” were shouted in favor of those carrying out Charlie Hebdo massacre and also press releases were made during protest demonsrations saying Kuaşi brothers had made proud of Muslims and wishing the approvement of their shahada.
In this process, some supporting visits were made to Cumhuriyet Daily who was threatened by the demonstraters praising ISIL militants and also subjected to feckless accusations of the politicians. Among those visiting to support the daily were people from several walk of society and judges/prosecutors as well. At that time, a center of hate speech Yeni Akit Daily targetting those judges hit headlines releasing “The judge of Charlie is a persecutor of the ones wearing head scarf” and “Sack those judges from the profession”. The request of Yeni Akit was put into effect by the Council of the Judges and Procecutors (CJP) newly reshaped after the constitutional referendum. According to the report by Kemal Göktaş issued yesterday in Cumhuriyet, CJP has given consent for the investigation to launch into judges and prosecutors making visits to Daily under severe crackdown of the executives. But, nor is this all. Observed morphologically of the pictures published on Yeni Akit Daily, the identities of the judges and prosecutors visiting Cumhuriyet were indentified by the Security Directorate of Criminal Police Lab.
As if the judges and prosecutors had kept their visits secret. One of the judges whose identity could not be determined over the morphologic observation showed a reaction to this implementation saying “I have learnt that the identities of the concerned judges/prosecutors were determined by the analyse of the pictures published in Daily over the morphologic observation made in Security Criminal Lab. Despite I also was present in the visit and my face was partly seemed in the picture, no legal action was taken on myself. This situation made me upset so that some action should also be taken on me”. Actually this investigation is a morphologic observation into Turkey, into not those saying “the ones carrying out the Charlie Hebdo massacre are our honour” but the judges and prosecutors carrying out visits for the press freedom.
It is a bit difficult for Turkey to recover with the accompaniment of such a judiciary and security directorate exercising its power by the order of Yeni Akit Daily, most particularly in this region.
While the Cumhuriyet Daily at the age of Turkish Republic is under blockade, the fact that Yeni Akit Daily has taken the position of Prosecutor’s Office is a proper summary of the transformation Turkey has being experienced.
The Guardian: March for Turkey’s jailed judges highlights purge on dissidents
Erdoğan accused of crippling democracy with hundreds from judiciary, media and civil service still detained after coup attempt
Nesrin Şimşek remembers in vivid detail the moment she was released from prison and was reunited with her infant son. “I cried for a month after I saw my baby again,” recalled the former Turkish judge. “He had given up breastfeeding while I was in jail, and in every dream I saw my child, and I was trying to give him milk.”
Şimşek (not her real name) was taken with her husband from their home on the Black Sea four days after the coup attempt in the country in 2016. She was released two months later to care for her boy. Her husband, a former prosecutor, has now been in jail for nearly a year without trial. Both are still under investigation.
The case of the Şimşeks mirrors that of hundreds of former prosecutors and judges who have been detained or dismissed without formal charges.
Interviews with former members of the judiciary and their families, legal experts, defence counsels and senior lawmakers, reveal a broad and systematic attempt at intimidating and reshaping Turkey’s judicial branch in an effort to further consolidate power in the hands of the rulin
g AKP party and Turkey’s president, Recep Tayyip Erdoğan.
The crippling of Turkey’s justice system, experts say, undermines a key pillar of democracy in a nation still reeling from coup attempt last year, and political polarisation that has shown little sign of abating.
“It is horrible. Judges are waiting to hear from the [presidential] palace, and they think the harsher the punishment [the judges hand down], the higher up they will go,” said Kemal Kılıçdaroğlu, leader of Turkey’s largest opposition party, the Republican People’s party (CHP), who is leading the march. “This is our main cause.”
Tens of thousands of people have been arrested or dismissed from their jobs in the civil service, military, judiciary, academia and media, in a broad crackdown that the government says is aimed at followers of Fethullah Gülen, an exiled preacher whose movement is widely believed to have been behind the coup attempt last July.
But that purge has gone beyond the alleged perpetrators to encompass dissidents of all stripes, including senior opposition lawmakers.
Nearly a quarter of all Turkish judges, about 4,000 people, have been either dismissed or arrested since the coup attempt. The government’s hold over the judiciary has tightened in the aftermath of a constit
utional referendum in April that expanded the powers of the president, allowing him and a parliament controlled by the AKP to appoint all members of the high council of judges and prosecutors (HSYK), a body with broad authority to appoint, promote, discipline and dismiss the nation’s judges.
“The proposed amendments weaken, instead of strengthen the Turkish judiciary,” the Venice commission, a European body tasked with providing legal opinion to states, said in a report before the referendum. “The proposed constitutional amendments would introduce in Turkey a presidential regime which lacks the necessary checks and balances required to safeguard against becoming an authoritarian one.”
Few dispute that the Gülenists, a vast grassroots network, had infiltrated the judiciary. They worked hand in hand with the AKP government in the 2000s in the notorious Ergenekon and Sledgehammer trials, when senior members of the military were accused of planning to overthrow the elected government. Those investigations are now largely discredited as having relied on fabricated evidence.
The final break occurred in 2013 when Gülenists tried to launch an investigation into corruption in Erdoğan’s inner circle, a move that was branded a “judicial coup”.
After last year’s pu
tsch, the government said it had been tricked by its former allies, and maintains that those purged are part of the movement.
But the scale of the purge, and apparent lack of evidence or indictments against many of the judges who have been detained, has prompted critics to accuse the president and his party of attempting to control an independent branch of government to cement their hold on the country.
Those who have been detained say they were repeatedly questioned in the initial investigation about whether they voted for government-approved candidates in past HSYK elections, for example.
Defence lawyers say much of the evidence against their clients is classified, and that some of it relies on anonymised confessions of suspected members of the Gülen network in the judiciary.
But even those confessions have little credibility. The head of HSYK and one of the most senior judges in the country, Mehmet Yılmaz, suggested late last year that he might consider reinstating judges giving damaging confessions about the Gülenist network, but admittedin a later interview that he had said so to entrap them.
“I made that statement solely to encourage confessions and I have been very successful, because, when there was not even one confessor then, there has been a boom following t
hat statement,” he told the news agency Habertürk. “Thanks to over 200 confessors, we have obtained evidence about 2,400 judges and prosecutors to prove their membership to [the Gülenists].” Yılmaz declined a request for an interview.
Öykü Didem Aydın, one of two Turks on the Venice commission and a defence lawyer for some imprisoned judges, said: “Of course there are Gülenists and they are an insidious organisation that should be purged, but it should be done in a logical, scientific, proper, judicial way. The circle is so wide, I’m calling it a fishing expedition.”
Didem represents Murat Arslan, a former judge and head of the judges and prosecutors association (Yarsav), an influential NGO made up of Turkish judges that was dissolved after the coup attempt and has often been critical of the government.
Arslan has been held since October in a crowded cell, but there is no indictment against him and the only pieces of evidence his lawyer has access to are the interrogation notes, claims that there were Gülenists in his social circles, and a confession by an anonymous source who appears in other cases.
Some of the other causes for suspicion for detained judges include speaking foreign languages or going in their youth to one of the dershanes, the private sch
ools that were often sponsored by the Gülenists.
One former judge who faced that accusation said it was absurd, partly because the government had allowed those schools to operate, and because a senior minister had gone to the same school attended by the judge.
The judge, who requested anonymity, said: “We were accused of being involved in a coup, so we expected questions like – where were the weapons? The only questions were about our background and they were particularly interested in which candidates we voted for in the HSYK elections in 2014.”
There are limited avenues for appeal for dismissed judges. A commission created to address such cases has not begun its work and now has a heavy backlog. Its existence means that those who wish to challenge the government’s state of emergency decrees have not exhausted all domestic options, and therefore cannot appeal to the European court of human rights.
To make up for the shortage in judges, the government waived some prerequisites previously forming part of the examinations to enter the service. Of 900 new judges recruited in April, the opposition claims that 800 have ties to the AKP.
“The main intention of the AKP is to be able to staff the judiciary, to fill all the available positions with their partisans,” sai
d Barış Yarkadaş, an opposition MP who uncovered the ties of judicial nominees to the ruling party, and believes the ruling party wants to control the judiciary to head off future corruption probes. “Turkish justice has been slaughtered and left in darkness. The right of citizens to be tried fairly has been eliminated.”
Judges have also been subject to widespread intimidation by the media, which has been largely brought under the control of the AKP and its proxies after a broad crackdown on dissident press.
Pro-AKP media harshly criticised the courts after they ordered the release of Atilla Taş, a pop singer who was accused of membership of the Gülen network, a decision that was reversed shortly afterwards. The opposition and defence lawyers say judges are fearful of ordering the release of detainees lest they be investigated themselves.
The upheaval that has gripped the judiciary and the warnings by international observers that the ruling party was solidifying its hold on the third branch of government, has led to criticism from abroad, with former allies in the EU criticising what they see as Turkey’s descent towards authoritarian rule.
The HSYK has been suspended from a European judicial observer body because, it said, the board was no longer independent. Talks
about Turkey’s accession to membership of the EU are frozen and unlikely to resume any time soon.
Meanwhile, many families of detained judges and prosecutors have been left in poverty by the imprisonment of their breadwinners.
Some female judges who have young children have been released out of compassion, but they remain under investigation, ostracised by members of society who are convinced that they are guilty, and without job prospects. Some declined interview requests for fear of government reprisals.
“We were like a power family,” said the daughter of two judges who were incarcerated after the coup, and remain there without indictments. She has had to subsist by sleeping on the couches of friends and relatives.
A law student herself, she said she now had little faith in the country’s institutions and the rule of law, but still wanted to work as a lawyer because “somebody has to work for human rights and justice”. She said: “My father always told me, we are judges, [not politicians]. We’ve only hugged once in the last two months.”
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Ahmet Altan has continued his court testimony by saying that “We were arrested because we criticised the AKP… (However) for me being a defendant in a trial like this and spending my life in jail is more honourable than being the prosecutor… There is no freedom of expression in this country except for the prosecutor’s lies… I don’t have any requests and your judgements don’t have anything to do with me. All judges will be judged by their own judgements.”
“They are being charged with the same accusations as those who picked up rifles and committed violence on the night of the coup,” said Tobias Garnett, a lawyer with P24, an organisation that supports independent journalism and represents a number of journalists, including the Altan brothers, told to the Guardian.
See the whole defense here: http://stockholmcf.org/journalist-novelist-ahmet-altan-calls-indictment-about-journalists-a-judicial-porn/
Renowned novelist Ahmet Altan accuses prosecutor in defense against coup charges
Renowned jailed journalist and novelist Ahmet Altan harshly slammed the prosecutor who prepared an indictment against him in a court hearing on June 22 as part of the alleged “media leg” of the Fethullahist Terrorist Organization (FETÖ), which is widely believed to have perpetrated the July 2016 failed coup.
“To put forward accusations that have no coherence whatsoever and are not based on any evidence is to ravish the law. Indeed, this prosecutor has made ravishing the law such a habit that our indictment has turned into pornography of the law,” Altan told the court in Istanbul in his defense
“The recklessness of the prosecutor who authored this untruthful and nonsensical indictment proves this has become a habit of the justice system,” he also said.
“There are said to be some men who directed this coup… There are said to be some men who knew these men… And we are said to know those men. I know it is very difficult to believe but this is what the indictment sets out in all those pages. Let me ask this: How can ‘knowing’ someone be accepted as the evidence of a crime? If you know a criminal does that make you a criminal, too?” he added.
While facing three aggravated life sentences for the charges, they also face an additional prison term of 15 years on the charge of “committing crimes on behalf of a terrorist organization without being a member.”
letter written by a Turkish judge
The situation in our country is getting worse every day. In a sense this article; The call of S.O.S from the setting sun of law … a shout for help. Maybe a desperate crying !
My dear Colleagues;
I have worked twenty years as a judge. Throughout my life, I have defended “pluralist democracy”, “state of law” and “human rights”. I will continue to defend. I have opposed all sorts of “terror” and “violence”. I’ve always been away from everyday politics. I have not compromised on these principles. Like many of my colleagues, now I am paying a heavy price of this…
After 15th of July; I was first suspended, then I was dismissed from my job without being taken my defense. Custody and arrest decision was issued about me like manyothers. Imposed a cautionary judgement on all my assets. I was removed from the dwelling house where I sat. My credit cards have been canceled. I was being put in a situation where i can not withdraw the money in the bank and unable to make a living for my family. I am stigmatized as “terrorist” and “putschist” without any evidence and against the presumption of innocence. The indictment has not yet been made about me. Maybe there is a lot to say. I explain these in terms of giving an example. I want you to know that i have no personal expectations. On behalf of thousands of colleagues who are in the same situation, I am telling these hoping that somebody will speak up for us …
In our country, nearly 4,300 members of the judiciary were dismissed from their professions. The vast majority of them are still arrestees. 2 members of the Constitutional Court and hundreds of Supreme Court and members of the Council of State have been detained for 10 months. In single cells, they are kept under heavy seclusion conditions. Those with severe health problems even cancer patients, are not released or can not be released
The judges who ruled on release decisions about journalists are being suspended on the same day. The members of the judiciary who sign the decisions that unpleasant to the executive are always threatened with arrest and dismissal.
There are many more negative examples can be given where things came from the point of law. It is no longer possible to talk about judicial independence in our country. This situation is reflected in many reports of EU official organizations. There are no platform left for the victims to be heard their voice due to the silenced media anf the arrested journalists and writers. The situation gets worse every passing day. The sun of
law is about to set.
In the face of these realities, has it not been time for you to take a proactive effort now?
Western civilization paid a lot of price to reach the current civilization level. Suffered a lot. You can understand us best!
While there are thousands of “Dreyfus” cases in our country, an Emile ZOLA who screamed for justice did not come out!
Professor Günther Jakops’s “Criminal Law of the Enemy (The Feindstrafrecht) Theory” is passed on to practice in our country with the applications that exceed Hitler’s Germany. Everyone’s voice is cut off, no one can make a sound. “Crimes against humanity” continue to be processed every day …
I think you have a conscience that does not say “it’s your problem”. I write in the hope that voices will be given to our voices …
The “ghost of lawlessness” circulating in Europe before World War II is circulating today in our country. It’s hard to predict what will happen tomorrow. If it does not hinder, “fire of lawlessness” is preparing to burn the whole world again … The danger is great!
If there will be no one to speak up for us, tomorrow this fire of lawlessness will take up everywhere. This fact has to be seen.
My only concern is “law/justice”, not politics. I believe that those who will put out the lawlessness fire again will be jurists…
The call for help is not a play for sympathy or for a personal request. The aim is to make aware of the danger and make efforts to ensure “enforcement of international law” before it is too late.
There are thousands of applications waiting in front of the ECHR. It is not put on the courts agenda. We want applications to be discussed as soon as possible. We want to be made an effort to ensure that the “law” is implemented as soon as possible.
I don’t know if it’s to much to ask ?
Won’t you want to answer the wailing of your desperate colleagues in a country where law is about to collapse?
Won’t not you like to contribute to the reestablishment of the law?
Won’t you want to keep our hope?
I took your time. Best regards.
A colleague of yours
(who can not write his/her name with security concerns)
1. NUMBER OF DISMISSED JUDGES/PROSECUTORS (5218)
In the last official statement of the HSYK, the number of dismissed judges and prosecutors (excluding military judges) was announced as 4238. After that, according to the Deputy Prime Minister Nurettin Canikli’s May 2017 statement in a TV program;
489 military judges
4933 (TOTAL) judges ans prosecutors was dismissed.
Including Court of Accounts auditors who are accepted in judiciary statute, this number reaches 5218:
2. NUMBER OF ARRESTED JUDGES AND PROSECUTORS (3089)
Interior Minister Suleyman Soylu made the final announcement in March about the number of judges/prosecutors who are under arrest as 2575. However, the number of arrested and released judiciary and the arrest of military judges were not included in I guess, then arrests made also, a twitter account which shares letters from persecuted judges/prosecutors, @jhhturkey announced the number of arresred judges and prosecutors as at least 3089. It is estimated that this number is close to the actual number.
3. ECONOMIC SITUATION OF DISMISSED JUDGES AND PR
Spouses of dismissed judiciary were also sacked if they were employed. They have no incomes for 10 months. Salaries and health insurances were canceled. Bank accounts and assets were frozen. Most of them still in detention although some of them are seriously ill. Those who are not under arrest are not allowed to work as lawyers or to work in another job because their names were published in the official gazette as a member of the terrorist organization. They do not even have an income for the house rent. Some of them moved to their families houses. The children who were studying in college left their education because they could not afford the expenses. They are under crimes against humanity.
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Independence and impartiality, indispensable quality, honor and virtue of judiciary. A judiciary who does not use his conscious, sells his personality, breaks it down and betrays himself and his nation, country and state before anyone and anything else.
In a political environment where distortions and irregularities have been overtaken and the contradictions and immoderations in different sections have been experienced and the pledges have been forgotten and negated, partisanism is gradually increasing, and objectionable procedure and actions follow each other. Lastly, 800 of the 900 judges appointed by the Ministry of Justice, who has relations to AKP is horrifying. In a country where the judiciary has lost its independence and its impartiality, justice becomes a dream, one cannot talk about security, social peace, welfare and rest. Judiciary bias is the most severe disorder.
It is a surprising contradiction while referendum results still discussing, as the complaints about the impartiality of the president not being compatible with the membership of a political party become widespread, it is an astounding repugnance that the reputation and trustworthiness of the judiciary was rendered constantly debatable and complainable by appointed judges comes from a ruling party background. Those who cause this objection that remains in duty, to be seen appropriate and protected, is also thought-provoking.