THE ASSESSMENT OF THE GENERAL SITUATION OF THE JUDGES AND PROSECUTORS AND THE DISMISSAL DECISIONS OF THE HCJP

THE ASSESSMENT OF
THE GENERAL SITUATION OF THE JUDGES AND PROSECUTORS AND THE DISMISSAL DECISIONS
OF THE HCJP

The author of this text is know to the editor, his name is kept secret for security reasons.

A)  
Summary

It is very
well known that failed attempted coup happened at the night of the day of 15
July in Turkey. There is no doubt this was an unacceptable, unlawful and very
serious crime in the name of democracy and rule of law.

But
surprisingly within 24 hours after the attempted coup, the High Council of
Judges and Prosecutors (HCJP, HSYK) immediately suspended 3654 judges and
prosecutors including five members of the HCJP. Until now 3390 of 3654 judges
and prosecutors were dismissed from the profession.  2146 of the 3654 judges and prosecutors
were arrested. According to the Amnesty
International, detainees in Turkey are being subjected to beatings and torture,
including rape, in official and unofficial detention centres in the
country.  Besides
it is said that some people in custody are being tortured and tormented for the
extortion.

Judges and prosecutors cannot receive legal help from the lawyers
because in general lawyers (advocates) don’t want to be representatives of the
arrested judges and prosecutors because of the fear of being prosecuted and the
pressure that comes from government. So arrested judges and prosecutors are not
able to use their rights lay down in the related laws to use during this
criminal investigation processes.

In addition to that Turkey declared state of emergency and it was
published in Official Gazette. After that Turkey has suspended European Rights
Convention under new state of emergency. Aftermath of the state of emergency,
the Turkish Government issued some decrees having force of law under new powers
authorised by its declaration of a state of emergency.

Moreover the Turkish government
has cancelled the passports of around 50,000 people including suspended judges
and prosecutors to prevent them leaving the country. Besides discussion started
about bringing back the death penalty as a sentence for all the suspended civil
servants and judges and prosecutors who are thought to be behind the coup. The
Association of Judges and Prosecutors (YARSAV), has been shut down. The assets
of suspended judges and prosecutors were frozen by the court on the demand of
Ankara Chief Public Prosecutor`s office.

HCJP made two dismissals decision which are numbered 2016/426
and 2016/428 about 2847 and 543 judges and prosecutors on the day of 28.08.2016
and 02.09.2016 respectively. The legal ground of both decision are same but the
attached list are different.  Due to
the reasons listed below, these decisions are contrary to law and Constitution.

1)    The decisions are based on the provision of 3 of the Decree
Having Force of The Law (no: 667) by the Council of the Minister and which was
published Official Gazette  (no: 29779) on the day of
23.07.2016 after the attempted coup which has not been approved by the
Parliament yet. But the government can not regulate the matters related judges
and prosecutors with the decree having force of the law. According to the
article of 140 in the Constitution, all matters of the profession of judges and
prosecutors shall be regulated by law in accordance with the principles of the
independence of the courts and the security of tenure of judges. 

2)    According the article of 120, 121/3, 15 of the Constitution
the Decree Having Force of Law (no: 667) is also unconstitutional in terms of
the matters which is regulated and validity period.  It means that Council of Ministers may
issue decrees having the force of law only on the matters necessitated by the
state of emergency, not 
on the all matters whatever the government want. But Government
has regulated the matters unrelated to the state of emergency by the Decree
No:663.  Moreover the state of
emergency decree laws due to be in place and will be implemented during the
state of emergency has been declared can not amend laws. But it is the fact that
the decree having the force of law has amended not only some articles on the
Law on Judges and Prosecutors and the Law on High Council of Judges and
Prosecutors but also the article 140 of the Constitution in practice.

3)    The dismissal decision based on the notion (concept) of
unsuitable / unfits to remain in the profession. The notion of unfit/unsuitable regulated by the article 139 of the Constitution  and
the
articles of 53 and 30/2 of the Law on Judges and Prosecutors. This concept can not be applied in this case.
Because this concept is directly
related to the evaluation of judges and prosecutors’ professional performance
and it is regarding to their promotion.

4)    The dismissal decision show the approach of collective
punishment which cannot be accepted in modern and contemporary law and can be
seen in primitive age. This is absolutely the breach of the principle of
individual criminal responsibility which is based on international and
universal documents and the article of 38/7 of the Constitution which says
“Criminal responsibility shall be personal.”

5)    The decision is taken without oral or written defense from
dismissed judges and prosecutors which is sine qua non and without disciplinary
investigation which must be carried out in compliance with the law.

6)    Even there is no the verdict of conviction about any of
dismissed judges and prosecutors by the Court which is necessary and oblige for
the High Council to accept those judges and prosecutors unfit/unsuitable to
remain in to the profession.

7)    In the dismissal decision there is no concrete and substance
evidence against judges and prosecutors (individually) which shows they are a
member of FETO the link between them (individually) and the attempted coup.
Furthermore the High Council did not show or inform any evidence which was
taken into the consideration during the decision-making process to dismissed
judges and prosecutors neither before nor after the decision.

8)    Further to that how the High Council prepared the list of
judges and prosecutors within less than 24 hours just after failed attempted
coup and how it examined all evidence against suspended judges and prosecutors
within very short time in some hours. 
Just this one also shows that either High Council or another institution
has prepared all unwanted judges and prosecutors list who would be dismissed
before the attempted coup.

9)    According to the article 33/1 of the Law on High Council of
Judges and prosecutors dismissed judges and prosecutor have only one way to
request the plenary to reexamine dismissal decision within ten days after
notification of the decision which had been initially taken by the Plenary.
Dismissal decision after reexamination request is final. So judicial review regarding this decision is
off, the way of individual application to the Constitutional Court as well

10) When we look at the structure of the Plenary it can be said
that the way of reexamination is not effective remedy any more.

 

 

 

B)  
General Situation

 

It is very well known that failed attempted coup
happened at the night of the day of 15 July in Turkey. There is no doubt this
was an unacceptable, unlawful and very serious crime in the name of democracy
and rule of law. In addition, hundreds of people had been injured and many of
them were killed. These criminal people who involved in the crime have to be
found and prosecuted as this is supposed to be in the normal legal system in
accordance with the law.

But
surprisingly within 24 hours after the attempted coup, the High Council of
Judges and Prosecutors (HCJP, HSYK) immediately suspended many judges and
prosecutors including five members of the HCJP. Ankara chief public prosecutor
office issued detention and search warrant about suspended judges and prosecutors
including some members of Council of State, Court of Cassation and even
Constitutional court.[1] Within very short time
lots of judges and prosecutors were arrested.

At this point
I would like to give the information about the concrete number of judges and
prosecutors either who were suspended, dismissed or arrested.

According to the statement[2] of
Mr. Mehmet Yilmaz who is current Vice President of the HCJP

ü  The number of suspended judges and prosecutors working in
first instance court including administrative judges is 3489

ü  The number of suspended members of Court of Cassation is 124

ü  The number of suspended members of Council of State is 41

ü  Total number is 3654

According to the information which is given inside of the
decision of the General Assembly of the HCJP[3]
(24.08.2016 and 2016/426 decision number)

ü  The number of arrested judges and prosecutors is 2146

ü  The number of judges and prosecutors who released with the
decision of judicial control is 539

ü  The number of judges and prosecutors who detention warrant is
issued about is 190     

ü  The number of suspended and arrested members of the High
Council is 5

The number of judges and prosecutors who dismissed from the
profession by the decisions (2016/426[4]
and 2016/428[5]) of the High Council   is 2847 + 543 = 3390

Moreover the Turkish government
has cancelled the passports of around 50,000 people including suspended judges
and prosecutors to prevent them leaving the country as a crackdown continues
following a failed coup.[6] Besides discussion started
about bringing back the death penalty as a sentence for all the suspended civil
servants and judges and prosecutors who are thought to be behind the coup.[7] The Association of Judges
and Prosecutors (YARSAV), a secular group that been shut down with a decree having
force of law in the aftermath of the attempted coup.[8]

The
assets of suspended judges and prosecutors were frozen by the court on the
demand of Ankara Chief Public Prosecutor`s office The asset freeze includes
vehicles, bank accounts, all types of claims, valuable papers, partnership
interest in any firm and safe deposit boxes.[9]

In addition to that Turkey declared state of emergency and it was
published in Official Gazette. After that Turkey has suspended European Rights
Convention under new state of emergency.[10] Aftermath of the state of
emergency the Turkish Government issued some decree having force of law under
new powers authorised by its declaration of a state of emergency.

The
worst thing is that some news on the Internet from independent resources such
as amnesty international[11]
reported that
detainees in Turkey are being subjected to beatings and torture, including
rape, in official and unofficial detention centres in the country.  Besides
it is said that some people in custody are being tortured and tormented for the
extortion.

Every day the names and images of arrested and dismissed judges and
prosecutors or alleged record of statements or confession of them  have being published on newspaper showed
on the channels as a criminal, terrorist as if they bombed the building of
national Assembly without taking into consideration their individual rights. So
they have lost not only their professional carrier, job, their property but
also their dignity. Not only themselves but also all members of their family
have been suffering.

Bizarrely, interestingly any political parties, bar associations, NGOs, media
did not or could not rise their voice against this violations of human rights,
role of laws and universal values because they thought that by doing this they
were defending democracy or might be because of the fear of the ruling party.
Only few judicial associations in Europe such as ENCJ[12], Judges for Judges,
MEDEL, EAJ AEAJ[13]
showed some reactions to rise concern over independence of the judiciary and
tenure of judges and prosecutors. It can’t  be effective in the short term but
it must go on in the long term.

They cannot receive legal help from the lawyers because in general
lawyers (advocates) don’t want to be representatives of the arrested judges and
prosecutors because of the fear of being prosecuted and the pressure that comes
from government. Even lawyers of some arrested judges and prosecutors, cannot
do their jobs and visit and speak to them properly in accordance with the
national and international norms because a guardian stands next to them during
the conversation taking place in the prison.  The lawyers cannot dare to insist to do
their job properly because of the pressure and the threat to them and sometimes
they are forced to resign by threat. Some of the lawyers defending detainees judges and prosecutors also were arrested.

Under these conditions arrested judges and prosecutors only have the
lawyers who tasked by the Bar among the registered lawyers just to fulfil a
procedure and formalities on paper. Of course in practice it is not effective
and efficient for the judges and prosecutors in prison. So arrested judges and
prosecutors are not able to use their rights lay down in the related laws to
use during this criminal investigation processes.

C)   Assessment of the
Dismissal Decisions of HCJP

Until now, HCJP made two dismissals decision which are numbered
2016/426[14] and 2016/428[15]
about 2847 and 543 judges and prosecutors on the day of 28.08.2016 and
02.09.2016 respectively. The legal ground of both decision are same but the
attached list are different. Due to the reasons listed below, these decisions
are contrary to law and Constitution.

1)    The decisions are based on the provision of 3 of the Decree
Having Force of The Law (no: 667) by the Council of the Minister and which was
published Official Gazette (no: 29779) on the day of 23.07.2016. But this
Decree Having Force the Law has not been approved by the Parliament yet. Dismissal
decisions are not based on the provisions (between the numbers 63 and 101) in
the Law on Judges and Prosecutors which is regulating disciplinary and criminal
procedure and the disciplinary sanctions.

 

In order to make it
clear, I would like to give brief information about the regulations in the
Constitution about the “decree having force of law” and its limits.

a)     The article 120 of the Constitution[16]
regulates “declaration of state of emergency because of widespread acts of
violence and serious deterioration of public order” and the article 121[17]
also refers “Rules regarding the states of emergency”. According to the article
121/3, during the state of emergency, the Council of Ministers, meeting under
the chairpersonship of the President of the Republic, may issue decrees having the force of law on matters necessitated by
the state of emergency. It means that Council of Ministers may issue
decrees having the force of law only
on the matters necessitated by the state of emergency, not  on the all matters whatever the
government want. In other words this mandate of the government is limited
by the power of the Constitution.

I regret to say that Turkish Government has regulated the
matters unrelated to the state of emergency by the Decree No: 667. The Council
of Minister has gone beyond this limitation which is regulated the article of
121/3 of the Constitution by issuing the Decree Having Force of The Law
numbered 667 which gives the authority to the General Assembly of the High
Council to dismiss judges and prosecutors are thought to be the members of terrorist
organizations from the profession.  The
government exploited its mandate which is given by the Constitution to purge
away all opponents who are all the civil servants and judges and prosecutors
and those are thousands of people.

b)    Second limitation of issuing decrees having the force of law is about the duration (validity
period). State of Emergency decree laws are limited by the time of the
declaration of the state of emergency. By the end of the state of emergency,
the decree laws are repealed by themselves. In other words, the rules which
applied beyond the duration (validity period) of the state of emergency cannot
be made by state of emergency decree laws. Therefore the amendments in the laws
cannot be made by the State of Emergency decree laws. Besides the case law of
the constitutional court is in this direction. To sum up, as the Constitutional
Court says in the judgment of 10.01.1991 (1990/25 E,1991/1 K.)[18]
"The state of emergency decree laws due to be in place and will be
implemented during the state of emergency has been declared can not amend laws.
Otherwise the rules of the state of emergency decree laws will remain in force;
although the state of emergency will end up"

But it is the
fact that the decree having the force of law has amended not only some articles
on the Law on Judges and Prosecutors and the Law on High Council of Judges and
Prosecutors but also the article 140 of the Constitution in practice. Furthermore
it has amended some articles of the law on Criminal Procedure. From this
perspective it is absolutely breach of the Constitution.  

c)     Another limitation is the article of 15 of the Constitution which
says that ‘In times of war, mobilization, martial law, or a state of emergency,
the exercise of fundamental rights and freedoms may be partially or entirely
suspended, or measures derogating the guarantees embodied in the Constitution
may be taken to the extent required by the exigencies of the situation, as long
as obligations under international law are not violated.

Even under the circumstances indicated in the first
paragraph, the individual’s right to life, the integrity of his/her corporeal
and spiritual existence shall be inviolable except where death occurs through
acts in conformity with law of war; no one shall be compelled to reveal his/her
religion, conscience, thought or opinion, nor be accused on account of them;
offences and penalties shall not be made retroactive; nor shall anyone”

The Decree Having Force of The Law numbered 667 dramatically
increases the amount of time detainees can be held without being charged from
four to 30 days. The change risks exposing detainees to further torture and
other ill treatment. The decree also provides for officials to observe or even
record meetings between pre-trial detainees and lawyers, and detainees are
restricted in who they can choose to represent them, further undermining the right
to fair trial. More or less the same as 100.000 civil servants including judges
and prosecutors, police teachers, and bureaucrats have already been suspended or
dismissed from their jobs, and this decree terminates their careers in public
service without a disciplinary investigation.

To sum up it can be said that the decree has being used to
target any opponent –perceived or real- beyond those in the Gulen
Movement. Besides the decree having force of law is not only violets the
Constitution but also European Convention on Human Rights.( the article of 5,
6, 8, 10, 11 and 13)[19]

2)    The first and most important legal source for the tenure of
judges and prosecutors is the Constitution. According to the article of 140[20]
in the Constitution, “The qualifications,
appointment, rights and duties, salaries and allowances of judges and public
prosecutors, their promotion, temporary or permanent change in their posts or
place of duties, the initiation of
disciplinary proceedings against them and the imposition of disciplinary
penalties, the conduct of investigation concerning them and the subsequent
decision to prosecute them on account of offences committed in connection with,
or in the course of, their duties, the conviction for offences or instances of
incompetence requiring their dismissal from the profession, their
in-service training, and other matters relating to their personnel status shall
be regulated by law in accordance
with the principles of the independence of the courts and the security of
tenure of judges.”

Despite the clear
provision (which is not including any exceptional situation) of the
Constitution which I mentioned above, the decision of the High Council is based
on the Decree having force of the Law instead of Law. Because of this reason it
seems to me that this decision is absolutely breach of the Constitution. The
government can not regulate the matters or subjects which are protected by the
Constitution with the decree having force of the law.  

3)    To sum up the decision of the High Council says and argue
that 3390 judges and prosecutors who
have not seen fit/suitable to remain in the profession are removed from
the profession because there is no doubt those whose membership in FETO terror
organization behind the attempted coup is established as a result of some
evidence consist of documents which show their professional and academic
background, arrest and detention decisions, the expression of judges and
prosecutors under investigations and the expression of the referenced query
report, the statements of the confessor. That is why according to the decisions;
dismissed judges and prosecutor are unfit to remain in the profession.

As far as I can see from the dismissal decision of the High
Council, I can say that from the perspective of the High Council, all 3390
judges and prosecutors are members of Gulen movement
(FETO) behind the coup. Just because of this reason they were dismissed from
the profession. But majority of dismissed judges and prosecutors never accept
that they are a member of Gulen Movment
(FETO). The reality is that until the decisions  there is neither any official
investigation which carried out in accordance with the law about those judges
and prosecutors nor the final decision is made by relevant authorities which
demonstrates that they are member of FETO without any doubt. It is just
presumption, assumption or hypothesis in the implementations of the High
Council. According to the article of 38
/ 4[21] Constitution “no one
shall be considered guilty until proven guilty in a court of law”

In addition I
must say that despite ongoing criminal investigation and trial, until now,
there is no any final decision which is made by the court about Gulen Movement that demonstrates Gulen
Movement as a Terrorist Organization without any doubt.

For the sake of
argument or hypothetically, let say that dismissed judges and prosecutors are member of Gulen
Movement, how it can be said that 3390 judges and prosecutors are behind this
attempted coup or they are involved in this unacceptable crime, how it can be
accepted that all they are guilty for the crime which they have not committed
or involve in. This approach is/means
definitely collective punishment which cannot be accepted in modern and
contemporary law and can be seen in primitive age. This is absolutely the
breach of the principle of individual criminal responsibility which is based on
international and universal documents and the article of 38/7 of the
Constitution which says “Criminal responsibility shall be personal.”

4)   
The decisions are taken without oral or written defense from
dismissed judges and prosecutors which is sine qua non and without disciplinary
investigation which must be carried out in compliance with the law. 

 

5)   
Even there is no the verdict of conviction about any of dismissed
judges and prosecutors by the Court which is necessary and oblige for the High
Council to accept those judges and prosecutors unfit/unsuitable to remain in to
the profession.  Under the light of
the universal rule of presumption of innocence we have to accept all judges and
prosecutors are innocent until the verdict of conviction by the court, end of
the fair trial.

As Claudia Pina 
said in the article[22] “Although
Articles § 2 ECHR seems to refer clearly only to trial, the scope of the
principle is the fundamental right to be treated and tried as innocent in
criminal procedure, even in the pre-trial stages, not only by the courts and
the police but also by the community, until guilt is established beyond a
reasonable doubt. This means that the scope of the principle goes beyond
Article 6 § 2 ECHR and is also addressed in Articles 3 and 5 of the ECHR,
referring to the prohibition of torture, inhumane or degrading treatment and to
the right to freedom. The presumption of innocence demands that the suspected/accused
person, from the first moment of contact with state authority in the criminal
system, must be treated as innocent. This principle of law extends its scope to
all actions taken by the police and judicial authorities regarding the
collection of evidence, the interrogation of the suspect/defendant, his right
to legal assistance, his right to remain silent and not cooperate with the
investigation and his custody in pre-trial stages ( as
recognized in European Court of Human Rights case law quoted above and in the
proposed Directive on the Presumption of Innocence. As a fundamental principle
of criminal procedure as stated above, the presumption of innocence demands
that all restrictions on the freedom, intimacy, privacy, not to mention
physical integrity, of the suspect/defendant are subject to criteria of
proportionality and minimum intervention, both necessary to the development of
the investigation.”

6)    When we look at the decision to examine what kind of concrete
and substance evidence there is about dismissed judges and prosecutors which
proves or demonstrates that they are definitely a member of FETO who are behind
of the attempted coup, but surprisingly I have not seen all the name of
dismissed judges and prosecutors inside of the decision or any concrete evidence
against them (individually) which shows they are a member of FETO, what kind of
relationship there is between Gulen movement and
individuals and the link between them (individually) and the attempted coup,
Even there is no discussion and evaluation of evidence or proofs against
individuals which demonstrate that they are guilty in the decision.

 

7)    Furthermore the High Council did not show or inform any
evidence which was taken into the consideration during the decision-making
process to dismissed judges and prosecutors neither before nor after the
decision. Just the dismissal decision and the attached the list of name of
dismissed judges and prosecutors were published by the Official Gazette without
taking into consideration of protection of 
privacy and the right against self-incrimination.

 

8)    Further to that how the High Council prepared the list of
judges and prosecutors within less than 24 hours just after failed attempted
coup and how it examined all evidence against suspended judges and prosecutors
within very short time in some hours.  Just this one also shows that either High
Council or another institution has prepared all unwanted judges and prosecutors
list who would be dismissed before the attempted coup.

 

9)    It can be seen from the decision that dismissal decisions are
not a decision of the disciplinary punishment (dismissal penalty) which is
regulated by the article 69[23]
of the Law on Judges and Prosecutors . Because when we looked the grounds of
the decision, we cannot see the provisions (between the numbers 63 and 101) in
the Law on Judges and Prosecutors which is regulating disciplinary and criminal
procedure and the disciplinary sanctions. The
dismissal decision based on the notion (concept) of unsuitable / unfits to
remain in the profession.

 

The notion of unfit/unsuitable regulated
in the Constitution and the Law is very clear. This concept can not be applied
in this case. Because According to the ARTICLE 139 of the Constitution “Judges and public
prosecutors shall not be dismissed, or unless they request, shall not be
retired before the age prescribed by the Constitution; nor shall they be
deprived of their salaries, allowances or other rights relating to their
status, even as a result of the abolition of a court or a post.

Exceptions
indicated in law relating to those convicted for an offence requiring dismissal
from the profession, those who are definitely established as unable to perform
their duties because of illhealth, or those
determined as unsuitable to remain in the profession, are reserved.”

The article
of 53 of the Law on Judges and Prosecutors regulates the ‘Termination of
service as a judge and prosecutor` which says that:

Article 53 – The service of judges and
prosecutors shall be terminated:

a) when it is decided to
dismiss from profession or when it is determined that they have become unfit
to the profession,

b)
save for investigation and prosecution proceedings against judges and
prosecutors, when it later found that they do not hold any of the
qualifications for admission to the profession,

c)
when, in the course of service, they lose any of the qualifications listed in
subparagraphs (a), (d) and (g) of Article 8 herein,

d)
if they withdraw or are deemed to have withdrawn from the profession,

e)
when they retire due to their own request, age limit or disability,

f)
when they die.

As you see from the provision 139 of the Constitution and 53
of the Law on judges and prosecutors any judge and prosecutors might be
dismissed from the profession if she/her becomes unfit/unsuitable to the
profession. 

Again when we look at the Law on Judges and Prosecutors to
examine in which conditions judges and prosecutors can be seen (accepted) as
unfit/unsuitable to the profession, we can see that according the article 30/2[24]
of the Law which stipulates that “The High Council of Judges and Prosecutors
shall decide whether to accept unfit/unsuitable judges and prosecutors to
remain in the profession who are deemed not worthy of promotion twice at a
specific degree or three times in a specific category.”

Under these clear
provisions light we can say that the decision of the High Council about 3390
judges and prosecutors are definitely unlawful. In order to accept any judge or
prosecutor as a unfit/unsuitable to remain in the
profession is directly related to the evaluation of his/her professional
performance and it is regarding to their promotion.

10)
Normally,
according the article 159/10 of the Constitution “The decisions of the Council, other than dismissal penalty from the
profession, shall not be subject to judicial review.” In addition to that the
article 33/5[25]
of the Law on High Council of Judges and Prosecutors repeat the same rule.
Therefore since the dismissal decision of the High Council about 3390 judges
and prosecutors are not the dismissal penalty as explained above judicial
review regarding this decision is off, the way of individual application to the
Constitutional Court as well. If dismissal decision was the decision of
dismissal penalty, dismissed judges and prosecutors would have had the right to
take their case to the Council of State and Constitutional Court by individual
application.

Consequently,
according to the article 33/1 of the Law on High Council of Judges and
prosecutors dismissed judges and prosecutor have only one way to request the
plenary to reexamine dismissal decision within ten days after notification of
the decision which had been initially taken by the Plenary. Dismissal decision
after reexamination request is final.

11)
When we look at the structure of the Plenary it can be said
that the way of reexamination is not effective remedy any more. Because
dismissal decision was taken unanimously by the members of the High Council
including undersecretary of the Ministry of Justice and four members who were
appointed by the President. The request of the reexamination will be reviewed
and evaluated by the same members. Therefore in order to annul the dismissal
decision, at least 12 members of the High Council has to change their legal
opinion in favor of concerned applicant.