The dismissals/arrest of 4000 judges and prosecutors are null on legal grounds /30 December 2016
Mehmet Yılmaz, the deputy chairman of Supreme Board of Judges and Prosecutors (HCJP), has been confessing in last two days which will affect all the coup trials. His statements are directly relevant with 4000 judges and prosecutors dismissed and being tried. As all the victims have been subjected to the same unlawful process, all the public officials, academics, housewifes also avail of his confessions
THE REAL CONFESSOR
The statement I am quoting will be a bit long but I want to share his statement that he made to Sevilay Yılman, columnist of Habertürk Daily which is as follows: “We will discuss to return the dismissed judges and prosecutors to their duty whose confessions are helpful and important!” Calling Mehmet Yılmaz to learn the real truth about his statement, Sevilay Yılman wrote in her column the followings:
It seems that Mehmet Yılmaz played a trick for the arrested members of the judiciary to gather evidences on FETO membership which will be necessary in the trial process. He told: “ No worries! HCJP will not return anybody who avails themselves of the effective repentance law to their duty. Our board is determined on this issue. I made that statement in order to encourage confessions and it was very succesful. Up to that time, there were no confessions but after I issued that statement, many were obtained. By means of excess of 200 confessors, we obtained evidences on FETO membership of 2400 judges and prosecutors. Actually, we can not possibly avail of the effective repentance law within the context of attempting the coup. They will be possibly tried only on the accusation of having a membership in an armed terrorist organization, because there has been nobody whose involvement in the coup attempt is definetely proved up to now! The investigations of the members of the judiciary have been being conducted only with charges on being a member of armed terrorist organization.”
The fact that the deputy chairman of the Spreme Board is lying and also disclosing his actual intention in a manner of indifferent to criticism is of serious concern, however, what’s more, his setting a trap for excess of 4000 judges and prosecutors is much more a matter of concern.
THE ARRESTS ARE NOT RELEVANT WITH THE COUP ATTEMPT
On the consideration of Yılmaz’s sayings, the following points can be concluded in summary:
1-The arressted judges and prosecutors are not coup attempters, there is no evidence on this issue.
2-They(HCJP) did not have an evidence on FETO membership at the time when the judges and prosecutors were arrested, however, they(HCJP) gathered some evidences by means of plotting something nefarious to them.
Speaking to Habertürk one day later to compensate for his gaffe, Mehmet Yılmaz made another tactless mistakes: “The detention warrants were issued about 2740 judges and prosecutors in the first hours immediate after 15 July coup attempt. Upon this, we suspended all of them in accordance with the pre-report of the judiciary inspector.”
The question that “How could you able to get so much names in a few hours immediate after the coup attempt?” represents the scope of magazine of the happenings. Because of the reason that Mehmet Yılmaz is a figure of magazine rather than a lawyer, he makes an effort to answer this question and he reveals the main confession hereby.
The judges and the prosecutors are subjected to investigation and prosecution in accordance with their specific law except the cases in which they are caught in the act of a crime. In the prosecution and investigation process of those who are first category judges on the other side, the Court of Cassation is competent to conduct. Let me write the summary of my sayings up to now with the capital letters: IF THERE IS NO EVİDENCE ON THEIR INVOLVEMENT IN THE COUP ATTEMPT, IN THAT CASE, THERE IS NOT A CASE OF BEING CAUGHT IN THE ACT OF A CRIME. So, it means that all the disposals in respect to detention, arresting and the dismissal decisions are null in legal grounds. At these days in which the rule of law is suspended by the executives, the statements made comfortably will be so important and helpful at the time when the principles of the law come into force again.
Seeing that there is no evidence on attempting to the coup, in that case, why did you carry out so unlawful proceedings in a few hours immediate after the coup attempt? It seems that these proceedings have been being carried out relying on the declaration of President Erdoğan that he made just after the coup attempt which is as follows: “ It is a gift from God, we could manage to do many things by means of the state of emergency which we could not be able to under normal conditions.”
NO EVIDENCE NO INDICTMENT!
According to the Judges and Prosecutors Code No.2802, the proceedings of the public officials in the extent of this code are matter of urgency. The indictment shall be prepared in 5 days and the conclusion of the case shall not take more than 3 months. However, despite 5 months have passed, the indictments have not been prepared yet. The deputy chairman confessed the reason that there were no evidences, so, to gather evidences, they played a trick and plot something nefarious. Those 200 confessors who believed in the lie of the deputy chairman with respect to that those, who did not disclose any name could not be released, firstly put themselves in a dangerous position. Because, while not being any evidence on their membership in terrorist organization, they became revealed an evidence of themselves even it was very weak. On the other hand, the other arrestees, blamed by the confessor, may easily refuse the accusations directed towards themselves on the grounds that the evidences were obtained against the law. The confessors also may not admit the testimonies taken under the threats. Because, everyone has a right to deny his/her testimony taken under strong pressure in wherever of the world.
Yılmaz said: “ Their confessions are in our knowledge, however, it is important that those statements were confessed by themselves”. As a matter of fact, if the confessors do not confess a concrete crime, those confessions do not matter. Because, Mehmet Yılmaz also confirms that those confessions are so weak due to being taken in a way of trick. Furthermore, if they form an armed terrorist organization with the confessions which is “We read a book, drank tea, supported some determined candidates in HCJP elections, etc”, I can be able to make an elephant out of my hat.
The confessions of Yılmaz also confirms the declaration of violation of International Human Rights organizations. “Mess punishment, the absence of individual case examination or interrogation” are reported in the reports of those organizations. Yılmaz told: “ If we had not experienced a coup in 15 July, we would have had to carry out the disciplinary proceedings of the judges and prosecutors by taking their defence until the autumn”. Hereby, the fact that proceedings of dismissals, which are so important, were conducted without granting the right to defence, has become certainly definite. There could not exist better argument than this confession for the defence of the victims in any platform.
THE DOMESTIC REMEDIES HAVE BEEN INEFFECTIVE AND NOT ACCESSIBLE FOR ONCE A MORE
Yılmaz revealed by his confessions important arguments that can possibly be claimed before the European Court of Human Rights. One of the domestic remedies that should be exhausted before the application with the ECHR is lodging an objection with HCJP. On the other hand, the Supreme Board which rejected all the objections of thousands of judges and prosecutors by issuing a single written-statement without individual examination, can not possibly make a decision independently and impartially. Mehmet Yılmaz clearly displayed the impossibility of the realization of the expectations on this issue.
How can a Council (of HCJP), which disregards completely the principle of presumption of innocence which can be summarized shortly as “everyone charged with a criminal offense shall have the right to be presumed innocent until proved guilty according to the law” and put the intelligence reports on the stead of the court judgement, possibly deliver a justice? Could the judiciary network, managed by the same council, be able to keep its stance in line with the law?
Somehow, all the victims of 15 July are thankful to Mehmet Yılmaz, deputy chairman of HCJP. Fortunately, he is a chairpresident, hadn’t he been, how would such an awful murders of the law have entered in the registers?