Monthly Archives: February 2017

State of Emergency Procedures Investigation Commission

THE REAL TRUTH ABOUT THE COMMISSION ESTABLISHED UNDER THE EMERGENCY DECREE LAW NO.685

This article was written by a lawyer in Turkey, requesting his name kept secret for security reasons

1-INTRODUCTION:

After 15 July coup attemp, the state of emergency was declared on 21 July 2016 across the country and then the emergency decree laws were issued one by one by the Council of Ministers over presiding of the President of the Republic. Within the context of the emergency decree laws, just like the firmans (commands) of the Sultans in Ottoman Empire, many regulations, which are not provisional but essential, in the field of fundemental rights and duties of the individuals were regulated which had gone beyond the restriction limits, provided in the Constitution.

Under these emergency decre laws no 667, 668, 669, 670, 672, 675, 677, 679, 683 and 686, almost a hundred thousand public servants were dismissed from the professions and hundreds of the unions, federations, confederations, private health&education organizations and institutions, the foundations and their universities, radio&television organizations, magazines, newspapers, news agents and many publications were shut down.

The legal remedies against these measures and administrative transactions, performed by the administrative boards under the authorization, granted by the decree laws, could not be put forth definitely by the academics or the practicers.

In other words, the persons concerned have not been informed up to now on the issue that whether those measures, taken under the emergency decree laws, are subjected to the judicial review in administrative courts or subjected to the individual application in the Constitutional Court. Under such a confused legal provisions, some of the persons concerned lodged their applications in administrative courts and the Council of State and some also submitted an individual application to the Constitutional Court in order to exhaust the domestic remedies. However, in its decision, the Council of State found that it did not have a jurisdiction to examine the merits of the application and it had remitted the case to the first instance court, holding it was primarly for the administrative courts to examine such applications. On the other side, the first instance administrative courts dismissed the applications for the absence of an administrative act. (Despite the applications, appealed to the Regional Courts against the decisions of the administarive courts have not been concluded yet, it is not difficult to guess the judgement of the Regional Courts.) Similarly, the Constitutional Court also has not given a decision about the individual applications, it is probably waiting for the issues be settled by the government firstly.

In addition, in its decision in case of Zihni/Turkey and Mercan/Turkey, the European Court of Human Rights (ECHR) declared the applications inadmissible for the non-exhaustion of the domestic remedies.

On the other side, the Council of Europe stated the fact that the Court would not be able to handle that huge influx of the applications in excess of ten thousands, lodged by the public servants against the dismissals under the emergency decree laws is of serious concern. In this context, the spokesman of the Court stated that the applications had increased significantly after the 15 July coup attempt and the decree laws were issued. Pointing out that the applications had raised enormously particularly in the past two weeks, he said that the Court could not forecast how many of those applications would be declared as admissible. Further, Thorbjorn Jagland, the Secretary General of the Council of the Europe also stated his concern about the issue and declared that each Turkish citizen had a right to lodge his application with the ECHR and called on the Turkish authorities to comply with the standards of the European Convention on Human Rights, otherwise the applications would continue to rise at an increasing rate.

Having regard to many conventions, one-sided and multilateral, of which Turkey becomes a party, Turkish authorities realized that it was impossible for them acting contrary to those conventions in a way issuing emergency decree laws in order to silence the opposition voices, otherwise, a hundred thousands of application will be lodged with the Court which is an undesireble outcome for the Turkish government. Accordingly, in order not to take a risk of facing general or individual measures, ordered by the ECHR and also prevent the applicants from applying to the ECHR, ‘the State of Emergency Procedures Investigation Commission’ was established under the emergency decree law no.685 on 23 January in 2017 to examine the transactions performed under the authorization granted by the emergency decree laws, issued up to now or henceforth.

The authorities of the Court declared the establishment of the commission pleasent. However, is the emergency commission, established under the decree law no.685, really an effective remedy to compensate the loss of the dismissed public servants and the closed institutions and also does it have a jurisdiction to order the reinstatement of the public servants in their positions or the reopening of the institutions in case of the dismissals or the closures are found unlawful? This issue is going to be examined in detail below.

2- What is the character of the commission established under the decree law no.685?

According to the decree law no.685, the persons concerned will lodge their applications with the comission, directly against the measures taken by the emergency decree laws on the grounds of having a membership, affiliation of, link or connection with the terrorist organization, structures, formations or groups which have been determined by the National Security Council to perform activities against National security of the State with no need to be performed of any other administrative transaction.

a)The Formation of ‘the State of Emergency Procedures Investigation Commission’;

Only one commission has been established across Turkey and consists of 7 members.

The determination of the members is as the following: 3 of the members shall be appointed by the Prime Minister from among the public officials; 1 member shall be appointed by the Minister of Justice from among the judges and prosecutors serving in the central, related and connected units of the Ministry; 1 shall be appointed by the Minister of Interior from among the head of Civilian Administration; 1 shall be appointed by the High Council of judges and Prosecutors (HCJP) from among the rapporteur judges serving in the Court of Cassation or the Council of State. The commission itself also elects a president and a vice president among its own members.

The commission will perform 2 years. In case of need, the Council of Ministers may extend the period for one year each time. In this case, the members of the commission will be determined again on the above-mentioned procedure. In this determination of the members, the former ones may take a duty.

The appointment of the members by the Primeminister is completely at his discretion without any restriction. The members, appointed by HCJP, will be appointed from among not the senior judges but the rapporteur judges, and the members, appointed by the Minister of Justice, will be appointed from among the judges serving in the Ministry. As we see, the members of the commission have neither a high profile nor a guarantee. They are also tend to submit to the pressure of the executives. On the other side, the politic and administrative bodies, appointing the members of the commisssion, gave the dismissal decisions themselves. So, this fact proves that the commission itself is nor independent neither impartial.

According to the article § 1 of Article 4: “ In case of launching an administrative investigation or permitted to be launched against any member of the commisison on grounds of having a membership, affiliation of, connection or link with the terrorist organization, any formation, structure or group which have been determined by the National Security Council to perform activities against National security, the membership of the members shall be terminated by the commission”. As to be seen, without a judicial or administrative decision, taken about the member, an administrative investigation, launched into the member, will cause termination of his/her membership. As a result of an investigation, launched by anyone from the Council of Ministers as a Prime Minister, signing the dismissals and the closure of the institutions, the membership will become terminated. Having regard to mess dismissals of ten thousands public officials from the professions without taking their defence on the charge of having a link to terrorist organization, a member who makes any decision that undermines the interest of the executives, may face an investigation, launched into himself/herself on charge of the same accusations.

b)The Duties of ‘the State of Emergency Procedures Investigation Commission’:

The issues that the commission will examine are made up of two parts. First part includes:
-the dismissals of the public servants from the public professions,
-the dismissals from being a student,
-the closure of the foundations, associations, unions, federations, confederations, private health&education institutions, private radio&television organizations, magazines, newspapers, news agents, publications,
-the issue of taking the rank of the retired personnel back.

Second part includes all the transactions, outside the scope of first item and performed directly in respect of the legal status of the natural and juristic personalities under the authorization granted by the emergency decree laws.

c) The Working Procedure of the Commission and the Application Procedures;

The applications to the commission will be made by means of the Governers of the provinces. The public servants may also lodge their applications with the public institutions where they had performed their duty before their dismissals.

The application time limit is determined as 60 days. In present cases, there are two choices. Firstly, those, who were dismissed under the emergency decree laws which entered into force before the date in which the applications can be submitted to the comission, will be able to apply to the commission within the sixty days after the date in which the applications can be submitted to the comission. Secondly, those who were dismissed under the emergency decree laws which entered into force after the date in which the applications can be submitted to the comission, will be able to apply to the commission within the sixty days after the publication of the decree law in the official gazzette.

There is one more issue which is not defined definitely in the emergency decree law no.685 is that whether the persons who brought a lawsuit in any judcial bodies before the establishment of the commission against the measures inside the scope of the duties of the commission should also apply to the commission or not. According to the provisional article § 1 of Article 3, they should apply to the commission.

The date in which the applications can be submitted to the commission, shall be declared by the Primeministry in 6 months following the publication of this article. The political will did not display a hurry in determination of the date, in which the applications will be submitted, as he did in the dismissals of a hundred thousands of the public servants and the closure of the hundreds of the institutions under emergency decree laws.

The most interesting point in this regulation is the prevention of the application of the article 10 of the Procedures of the Administrative Justice Code which is as follows: “the persons concerned may request the administrative authorities to implement an act or take an action that may be subject of a lawsuit. If the request is not replied within 60 days, it shall be deemed to be dismissed. The persons concerned may bring an action in the Council of State, administrative and tax courts, depending on the subject of the case, within the time limits running from the end of the sixty-day period.” In other words, in the provision of the emergency decree law regarding the commission, the waiting period of the applicants is not defined and further the time period in which the commission shall conclude the applicants is also not defined which means that the commission is granted an authorization to examine the applications in an undefinite time period. Accordingly, in case of an application is not replied in a definite time period, the applicants can not bring an action in the courts as they can do in line with the article 10 of the Procedures of the Administrative Justice Code.

According to the Article 13 of the emergency decree law no.685, the working procedures and the principles of the commission shall be regulated and also declared by the Prime Ministry on the proposal of the commission. This regulation is a problem all on its own because the working procedure of the commission is deprieved of a legal guarantees.

Moreover, the commission shall examine the applications over the files without holding a hearing, in accordance with the evidences, submitted in the application. This regulation not only presents none of the procedural fundemental rights which are necessary for all the bodies that will exercise the judicial power but also renders the right to defense useless.

In other words, the main procedural right of a suspect (even if he is a guilty and whatever the seriousness of a crime he committed), is the right to defense himself. To impose a punishment to him, the authorities should grant him a right to defense. Within the context of the dismissals of the public servants and also the closure of the institutions, any investigation had not been conducted or the disciplianary provisions of the Code of the Public Servants had not been applied. These persons were subjected to the imposement of the measures directly without being granted any of the fundemental principles of a fair trial notably as regards, right to defense, informing the accusation to the suspect, the right to know and discuss the evidences, the right to discuss the denouncement and announcements against himself etc.

Furthermore, the dismissed individual or a closed institution were subjected to measures on the grounds of “having a membership, affiliation of, link or connection with terrorist organization, structures, formations or groups which have been determined by the National Security Council to perform activies against National security of the State”. However, nor the structure, group or formation they were connected or linked with, neither, which acts of them displayed their affiliation or membership are definite. In this case, there is only one choice for the applicants to defense themselves, which is that they will set forth the claim of “they don’t have a membership or link with any structure, group or formation” due to be not informed of the accusation directed to themselves. This case is primarly contrary to the main fundemental principle of the international law and the equality of the arms. The choice of rendering the recourse to the commission available and accessible can not be substituted with granting the right to defense.

d) The Characteristic of the Decision of the Commission:

The commission shall render a dismissal or acceptance decision as a result of its examination.

1-In case of the acceptance of the decision, the decision can not be applied retroactively. Firstly, the decision of the commission isn’t an anulment decision. Although the commission establishes that the administrative act (transaction) that causes the dismissal or closure is contrary to the legal provisions, that act will not be able to be annulled. Accordingly, the status quo ante can’t possibly be instituted as a result of the acceptence decision of the commission.

The provisions of the acceptance decision are listed in Article 10 of the emergency decree law no.685 as the following:

“Article 10-(1) In case of the acceptance of the applications, filed by the dismissed public officials, the decison shall be informed to the State Personnel Presidency. The appointment proposals of these officials shall be made by the State Personnel Presidency to the staff and positions in line with their former status and titles in the institutions other than the institutions they had performed before except those officials whose charcing with a duty in other institutions due to their statu, title or the duties they had performed before are impossible. (…)
(2)In case of acceptence of the application, filed by the closed institutions, the provisions of the concerned decree law shall become abolished with all the outcomes and provisions relating the closed institutions beginning from the date following the publishing of the decree law.”

The above provision reveals that the applicants shall not be appointed to the institutions, where they had performed their duty before but to anywhere else under the commission’s discretion which renders the institution of the status quo ante impossible.

Furthermore, this regulation can not present any outcomes of the annulment action, which requires to put an end to the violation if there is an ongoing one and then return everything to the state as it was before as much as possible, also can not present any outcomes of the full remedy action, which requires to compensate the past losses of the victims during the violation.

2- In case of the dismissal of the application, the persons concerned may bring an annulment action against the dismissal decision of the commission in Ankara Administrative Courts that shall be determined by the High Council of Judges and Prosecutors.

The Judicial Review of the Decision of ‘the State of Emergency Procedures Investigation Commission’:

The Article 11 of the decree law no.685 provides: “The persons may bring annulment action against the commission decisions in Ankara administrative courts which are determined by High Council of Judges and Prosecutors (HCJP)”. As seen, in accordance with the provision, the persons concerned may bring annulment actions against not the acts of Minister of Council and the acts, performed based on the authorization granted by the decree laws, issued by the Minister of Council, but the dismissal decisions of the commission. So, the courts can not examine the legality of the emergency decree laws which cause the public officials dismissed and the institutions shut down.

With this regulation, considering that the current judiciary which has been completely taken under the control of the executives might render various decisions, the ruling party regulated that the persons concerned may bring an annulment action against the dismissal decision of the commission in only Ankara Administrative Courts that shall be determined by the High Council of Judges and Prosecutors.

On the other hand, there has been no provision regulated in the present decree law on the issue that what will be done about the lawsuits brought to the administrative courts and the Council of State and the individual applications submitted to the Constitutional Court against the measures taken under the emergency decree laws inside the scope of the duty of the commission. There is an emptiness on this issue. The courts concerned probably will not examine those cases on the merits and dismissing the applications on their procedures on the grounds that the recourse to the commission shall be available against all acts of the emergency decree laws. In fact, the courts should delay the examination of the cases brought by the applicants who also applied for the commission until the commission will conclude the application and in case of the acceptance of it by the commission, the court should dismiss the case, otherwise, in case of the dismissal of the application by the commission, the court should examine the case on its merits.

The emergency decree law no.685 provided a different judicial remedy for the members of the judiciary. According to the concerned provision, the dismissed members of the judiciary or those considered to be so, may bring an annulment action directly to the Council of State without exhausting the remedy of the commission within sixty days after the publication of the decree law no.685 in the Official Gazzette. On the other side, the cases brought to the administrative courts beforehand will be remitted to the Council of State. Moreover, in accordance with the provisional article 4 of the emergency decree law no.685, the dismissed members of the judiciary who did not apply for the annulment in administrative courts or the Council of State, are granted a supplement period of 60 days for bringing an annulment action to the Council of State.

3- Is the Commission established under the emergency decree law no.685 an effective domestic remedy?

It has been 6 months since the public officials were dismissed and the institutions were shut down based on the authorization granted by the emergency decree laws. Furthermore, despite it has been 1 month since the emergency decree law no.685 entered into force, the members of the commission haven’t been appointed yet. Considering the regulation that the date in which the applications can be submitted to the commission, shall be declared by the Prime Ministry in 6 months following the publication of this article, under the best optimistic guess, even the applications can be submitted to the commission immediately, the persons who were dismissed under firstly issued emergency decree laws will have become applied to the commission 1 year after the dismissals.

On the other hand, having regard the issues that the commission will perform during 2 years; only one commission has been established across Turkey; the commission consists of seven members; almost a hundred thousand dismissed persons and that amount of closed institutions, totaly in excess of two hundred thousand applications, will apply to the commission, it can be easily understood that the commission will not be able to conclude all of the applications in only 2 years. Even the commission concludes the applications in a timely manner, namely in 2 years, considering the disposition time is 3 years for the judicial review including that of the cassation appeal to the Supreme Court and lastly, adding the disposition time for the Constitutional review which is also nearly 3 years, the total disposition time of exhausting the domestic remedies will take almost 8 years for the applicants. When adding the disposition time of the applications, lodged with the ECHR, which is nearly 4 to 5 years, the total disposition time for the legal process of the dismissed public officials and the closed institutions will take 12 to 13 years.

Accordingly, considering the following facts;

*The commission hasn’t been established yet,
* According to the provisional article 2 of the emergency decree law no.685, the applicants will be able to apply to the commission at a date which is determined by the Prime Ministry within 6 months after the establishment of the commission,
*In case of the application isn’t replied by the commission within 60 days, the provisions of the article 10 of the Procedure of Administrative Justice Code as to the application is deemed to be dismissed can not be applied and any regulation concerning the disposition time limits for the applications to the commission isn’t provided in the emergency decree law,
* In excess of two hundred thousand applications will be examined by only one commission consisting of only 7 members,
it can be easily understood that the emergency commission is nor an effective remedy neither a commission just like the European Council intended to be established.

In addition, the Chief Public Prosecutors’ Office have launched an investigation into the majority of the dismissed public servants, even public cases have been filed against some of them on charge of having a membership in terrorist organization. These cases will be probably concluded as soon as possible by the judicial bodies which have been taken under the control of the ruling party (after the consent of the constitutional amendment, the judiciary will be completely under the control of the President of the Republic) and also sentence the victims. In this way, this court judgement (sentence of the public servants) will be submitted to the commission as a rightful reason for their dismissal. The ruling part will avail of this case in a way that the validity(!) of the emergency decree law acts which have been performed under the initiative and the disposal of the Government will become confirmed by means of the court judgements.

4-CONCLUSION:

In summary, assessing the suspension decision of the membership of Turkey in EU, the report of the anti-torture Committee, the Venive Commission report and all the declarations made by the authorities of the ECHR and several international institutions in responce to the implementations of Turkish Government after 15 July coup attempt, ‘the State of Emergency Procedures Investigation Commission’ was established under the emergency decree law no.685 6 months later since the first emergency decree law was issued in order to get rid of the pressure over, particularly, the President of the Republic and the other executives and also to display an image as if they are affiliated to the democracy and the rule of law.
On the light of the above explanations, it is considered to be necessary to ask again the question of “Does the commission really aim to reinstate the dismissed ones in their positions or reopen the closed institutions, namely return everything to the state as it was before (status quo ante) and also compensate the pecuniary and non-pecuniary losses of the persons concerned?” This question can be answered as the following:
Considering the following facts:
-the commission hasn’t been established yet,
– according to the provisional article 2 of the emergency decree law no.685, the applicants will be able to apply to the commission at a date which is determined by the Prime Ministry within 6 months after the establishment of the commission,
– in case of the application isn’t replied by the commission within 60 days, the provisions of the article 10 of the Procedure of Administrative Justice Code concerning the application is deemed to be dismissed can not be applied,
-any regulation concerning the disposition time limits for the applications to the commission isn’t provided in the emergency decree law,
– in excess of two hundred thousand application will be examined by only one commission consisting of only 7 members,
it can be easily understood that the emergency commission is definetely not an effective remedy. So, the answer of the above question will be definitely “no”.

It is obvious that the only aim of the commission is to save a time keeping the applicants busy in lodging their applications with the ECHR. Under such circumstances, the ECHR should render a violation decision which guides Turkish Government how to settle these disputes. This violation decision should be a pilot decision that explains in detail what should be done to render the domestic remedy, which will be established, complied with the fundemental principles of the law, stated in Venice Commission report. The possibility that the Court might choose to wait for the conclusion of the process of both commission review and administrative action in order to make a decision about the applications will cause both destructive outcomes that undermine all of the human rights protection mechanism and also the damages of a hundred thousand persons whose compensation will be impossible.

we need the help of European authorities

Letter from Turkey, directed to the blog editor, addressed to the public:

“My husband was a judge in Turkey. He was dismissed and arrested after the coup attempt. I have two small kids. It has been 7 months since the coup attempt. He is still in prison. I don’t believe in justice anymore. What will happen to us? They wish us to die, starve or what? There are lots of people who are worse than me, but I am no better than an ordinary person on the street. Imagine that your life has changed in a bloody night, but you have nothing to do with the people who are the reason for the coup attempt. I just want justice, nothing but justice. For that reason, we need the help of European authorities. Maybe, they can end this unfair situation.

 Sincerely. “

“No”, how they did it in the 80s in Chile

 

No is a 2012 internationally co-produced drama film directed by Pablo Larraín. The film is based on the unpublished play El Plebiscito, written by Antonio Skármeta. Mexican actor Gael García Bernal plays René, an in-demand advertising man working in Chile in the late 1980s. The film captures the historical moment of advertising tactics in political campaigns as in the 1988 plebiscite, when the Chilean citizenry decided whether or not dictator Augusto Pinochet should stay in power for another eight years.

From Wikipedia, the free encyclopedia

solitary confinement – during period of remand !! – as a means of inflicting additional hardship and imposing extra punishment

[an email to the blog editor]

The human rights situation in Turkey has deteriorrated due to the purges and crackdown on extended sections of the society including journalist,academics judges prosecutors other civil servants as well as ordinary people on the street since the attempted coup in July 2016.

One devastating problem relates to the treatment that the detainees are receiving in prison. The penitentiary institutions began to use solitary confinement as a means of inflicting additional hardship and imposing extra punishment on many detainees arbitrarily. I have learned through my informal contacts with the families that many members of the judiciary are in fact being exposed to similar solitary confinement prectşces. My son N.N. has also been under solitary confinement at XX penitentiary since 20 July 2016 for no reason at all in clear violation of law and international human rights standards.

“Please announce our voice to the European Union. We have very hard times.”

[Email to the blog editor]

Hello sir.. thank you for your mail .. we are suffering from material difficulties, we are suffering from spiritual problems .. my husband has been kept in prison for 7 months without any concrete evidence. He has the uncertainty about us. Unfortunately, my husband who was arrested while I was 5 months pregnant could not be with us at the birth of my son. I had a very risky emergency surgery. My baby and I have survived the danger of life. I wanted to go with the prosecutor who is interested in the file of my husband and explain the situation and release my husband with a petition with various reports. The prosecutor told me that he had to stay in custody to find evidence that there was no evidence in his file. In the toughest times, my husband could not be with us. I have a lot of mates with my 4 month old baby and my 4 year old daughter. Please announce our voice to the European Union. We have very hard times.

Another voice from Turkey – When will the European authorities beginn to listen ?

[email from turkey to the blog editor]

I am very glad to get an answer from you. I am only one example among all the judges/prosecutors’ families who have been facing injustice since the Coup. As we were representing justice, equity and fairness right besides our husbands, we were accused of being a part of a group which wasn’t true. Among all the judges/prosecutors, nearly 4000 were dismissed and nearly 2500 of them were sent to prison like my husband.
Our husbands are innocent cause they didn’t do anything illegal but their job. Actually they haven’t even been given any chance to defense themselves. They haven’t got any allegation.
The judges/prosecutors’ families were left to poverty. Psychologically we are all collapsed so we are all appreciated to your support and thankful to you.
With best regards.

Cry for help from Turkey

[Mail from Turkey to the blog editor]

DO YOU HEAR THE İNNOCENT JUDGE AND PROSECUTORS VOİCE? WE ARE INDEPENDENT AND HARDWORKING AND HONEST LOVER JUDGES AND PROSECUTORS. NOW IN TURKEY WE HAVE ANY SOLUTION. BUT WE BELIEVE IN HUMAN RIGHTS MUST BE EVERY WHERE. YOU ARE THE PROTECTOR OF HUMAN RIGHTS YOU HAVE TO DO SOMETHING URGENT ABOUT US. OUR FAMILİES OUR BABİES ARE DİSOLATED AND MİSERABLE AND POOR AND CONFUSED. DO YOU KNOW MANY JUDGES AND PROSECUTORS ARE İN SOLITERY CONFINEMENT İSOLATED İN CELLS FOR 6 MONTHS AND THE ECHR DOES NOT SEE THIS AS A MATTER OF URGENT APPLICATION? ARRESTED JUDGES AND PROSECUTORS IN TURKEY ARE BEING HELD IN SOLITERY CONFINEMENT AND TORTURED WITH THE ORDERS OF “JUSTICE MİNİSTERY” WİLL YOU STILL KEEP IN SİLENT?

I AM WHO İS N.N. is one such judge who was arrested shortly after the coup and continues to be detained in Turkey on allegations of links to the Fetullah Terrorist Organization. My petition to the ECtHR is the first of more than 3,000 petitions against the Turkish government to reach the ECtHR since the coup. Mercan accused the Turkish government of violating her right to liberty by her continued confinement in deplorable conditions and her right to a fair trial through her continued detention without a hearing. However, the ECtHR held that Mercan must first exhaust available domestic remedies before the Court can address the underlying issue.

It is disappointing that the ECtHR did not take this opportunity to assess the effectiveness and availability of remedies for Mercan and others like her as well as to analyze the validity of the July 2016 derogation that allows Turkey to continue to violate fundamental human rights of its citizens. With thousands languishing in pre-trial detention and no trials having yet taken place, it is unclear how long Mercan and her fellow detainees will have to wait before their domestic remedies are formally exhausted as required by the ECtHR As such, her rights remain firmly in the ‘theoretical and illusory’ camp and not ‘practical and effective.’ I am asking is it the right thing keepıng silence? Where is the ARTİCLES OF HUMAN RİGHTS? WE ARE WAİTİNG FOR WHAT? WE NEED REAL JUDGEMENT REAL LAW REAL JUSTİCE!

Detaining so many judges and lawyers … means the abrupt end of the Rule of Law in Turkey

Report by Hans Gaasbeek* about the international lawyer conference held in Ankara (Turkey) between the 13th and 15thof January, 2017

[The original of the report can be found on the site of “European Democratic Lawyers” , it’s republished in this blug for increased distribution]

The ‘International Conference On Law, State of Emergency And Judicial System in Turkey’ was co-organized by different European lawyer organizations like: the AED (European Democratic Lawyers), the ELDH (European Association of Lawyers for Democracy and World Human Rights) and the Foundation Day of the Endangered Lawyer.

The conference was also co-organized by the European organization of judges MEDEL (Magistrats Européens pour la Démocratie et les Libertés). A great number of bar associations of cities in all corners of Turkey was co-organizer and had a big impact on the programme and organization of the conference.

The conference was held in Hotel Plaza in Ankara, where a lot of international colleagues were staying for the weekend.

This was a pleasant hotel with a very well-equipped conference room. There was no special security, except for one unarmed person at the entrance of the hotel. There was a huge interest from Turkish lawyers in the conference. They were coming from over 30 Turkish cities. There were 300/400 lawyers and judges taking part. 6 panels were organized with different speakers, who highlighted their specific subject. The subject of the speeches was the actual situation of the disappearing state of law in Turkey.

It was very different from other lawyer conferences. In this conference there was a lot of attention for the other professionals who are also endangered. There was a journalist panel, a judges panel, a panel of members of parliament. The panels of the journalists, judges and members of parliament and also the international panel and the Turkish lawyer panels have painted a very accurate picture of the actual situation and how the different professions are threatened and have to work in an atmosphere of fear and intimidation.

In the international panel I informed the public about the way the Dutch social lawyers association VSAN works and about the way of working of the Foundation Day of the Endangered Lawyer. I also invited the lawyers of the 30 Turkish cities to manifest themselves on the Day of the Endangered Lawyer for the general position of the lawyers and the attacks on the Rule of Law. I explained how the actual difficult situation in Turkey is seen by the politicians and press in Holland. During the congress I was in contact with a journalist of the Dutch newspaper Algemeen Dagblad a couple of times; he published a small interview with me on the internet (a copy of this interview is attached to this report). I was the only person from the Netherlands present on this international conference.

Because of the fear for tensions and possible problems for the organizors of the conference, I had informed and invited the Dutch embassy to take part in the conference. After a few contacts via e-mail we were able to establish a good working relationship with the second secretary of the embassy, who was present during the afternoon programme on the second day of the conference. I introduced him to a lot of judges and lawyers who represented the different Turkish bar associations and the international organizations. He was the only diplomatic visitor, which gave the conference an extra dimension, also from the point of view of safety.

The former German judge Ingrid Heinlein was also present at the conference. We had already been in touch with her in 2016, when the Day of the Endangered Lawyer focused on the difficult situation of the lawyers and judges in Honduras. This judge had taken part in a fact-finding human rights mission in Honduras two years ago. She has already been a member of the international European judges organization MEDEL for more than 20 years, and is also a member of the German ‘judges for judges’-association. I also contacted the Dutch foundation Rechters voor Rechters (Judges for Judges) about the Ankara conference. The president of this foundation had also thought about taking part in this conference.

During the conference, there were no real problems with the Turkish police or justice authorities, apart from one incident: the Italian lawyer Barbara Spinelli – who was going to speak at the conference – was stopped at the airport in Istanbul. They arrested her and made her spend one night imprisoned, before sending her back to Italy the next day. She was hindered in taking part in the conference, while she was one of the speakers of the international panel.

During the conference a lot of information was given to the lawyers and judges present. After the failed coup attempt 70.000/80.000 people were put in prison. Among them were 3007 judges and prosecutors and about 300 lawyers.

Detaining so many judges and lawyers is a very, very intimidating action for these professions and, in my view, it means the abrupt end of the Rule of Law in Turkey. We cannot possibly speak of an independent judicial system anymore, in which no political or other state power influences decisions. At the moment the government exercises extreme power over the judiciary. This is an unacceptable situation for a democracy.

Those present in the conference were told that many radio stations and television stations and newspapers were closed by the government. The speakers in the panels were under the impression that after the coup, many people were arrested arbitrarily and for not very logical reasons. Judges, lawyers and prosecutors were arrested randomly. Furthermore, at the conference it was said that the Turkish government didn’t do any serious investigation on the real perpetrators after the coup. It was even said that the investigation had already been closed or would close very soon.

At one lawyers office 7 lawyers were arrested. One of the people still representing this office gave me a small file with a request for help. The last remaining lawyer at this office – who had not yet been arrested – had to offer legal assistance to his own colleagues.

After being arrested, judges and lawyers are being kept in detention, according to their Turkish colleagues, in opposition to the rules of the European Convention on Human Rights and against the standards of the Turkish detention laws. Arrested lawyers and judges are not allowed to see a lawyer, and if they are, it is – in the best case – only half an hour per week. All contacts with their lawyer and with third parties are being recorded and monitored by police officers in prison. Official papers are being copied by the prison authorities. Besides that, lawyers are directly identified with their clients who are often accused of being part of the Gülen movement.

I was impressed by the very strong solidarity between all the lawyers coming from more than 30 Turkish cities from all over the country. The Turkish lawyers were very happy to have the support of the co-organizing European lawyer organizations and the organizations of judges. All the international guests were treated with big hospitality and personal support.

Among the many arrested lawyers and judges there are also many presidents from local bar associations and even from courts. The Turkish media who are pro-Erdogan and who are pro-the Turkish government are often accusing the arrested jurists of being terrorists, which makes it easier for the government to treat the arrested more severely and facilitates even more restrictions during their detention.

Since July 2016, the Turkish government has lifted c.q. suspended the working of the ECHR, by declaring a state of emergency and prolonging this afterwards. In Turkey groups and individual persons are often being accused of being a member of a criminal organization. Furthermore there have been many house and office searches in the homes and working places of arrested lawyers and judges. There have been many complaints about the treatment of people in detention. Many detained lawyers and judges complain about the fact that they were harmed psychologically and physically because the lights in their cells were on the entire night, so they couldn’t sleep. The detained lawyers and judges are often humiliated; they complained of being exposed in handcuffs in court houses.

There seems to be a situation of growing lawlessness, which is not only increasing for the arrested judges and lawyers, but also for those who have not yet been arrested.

We have been informed that the prosecution of judges and lawyers in Turkey is done with many faults and in a very careless manner. Many people are accused, without any real evidence or proof. Also, most of the times the actual exact accusation is very unclear. Often, it appears that the accusations are quite bizarre like undermining the state, doing terrorist acts or being a member of a criminal organization. Especially since the Turkish government has forbidden many, many organizations, also two well-known lawyer organizations, OHD and CHD, people can now be arrested quickly and be seen as an offender when they are a member of such forbidden lawyer organizations or active in such organizations.

The Turkish colleagues took very good care of their foreign colleagues. We were picked up and brought back to the airport and treated with a lot of hospitality.

From my contacts with many Turkish colleagues at the conference, it appears to me that many people are exhausted because of the continuous pressing political situation. It was clear that the colleagues are suffering because of this actual political situation. In Ankara, there was a lot of police on the street and it was no longer a town with atmosphere.

At the diner in the building from the bar of Ankara, the situation was quite different. After a very nice dinner, we heard people singing Turkish songs and dancing. After saying goodbye to our colleagues we took the bus to the airport and left with mixed feelings. We were leaving while they had to continue living in this difficult situation.

*Hans Gaasbeek, International coordinator of the Day of the Endangered Lawyer, president of the Foundation Day of the Endangered Lawyer and vice president of the Dutch League of Human Rights

TURKEY’S CRIMINAL PEACE JUDGESHIPS

(Author know to the blog editor; kept secret for security reasons)

Introduction

1. The present report provides a critical analysis of the structure, powers and functioning of the criminal peace judgeships created after the disclosure of the 17 and 25 December 2013 corruption investigations in Turkey from the perspectives of the rule of law, independence of the judiciary and protection of human rights. The report consists of three parts. The first part discusses the developments in the Turkish judicial system following the break out of the December 2013 corruption investigations in the days up to the creation of the criminal peace judgeships. The second part focuses on the invention, design and functioning of the criminal peace judgeships specifically as an instrument of the executive’s fight orchestrated by the then prime minister and later as the president against the allegedly Gulen affiliated persons. The third part presents some of the most devastating results of these specifically created courts which have also been functioning under the extraordinary powers given by the emergency decree laws. The report concludes with a brief discussion of some of the main findings of the analysis.

 

I. Developments in the Turkish Judicial System Amid December 2013 Graft Probes

2. The unfolding of 17 and 25 December 2013 sparked off a renewed wave of undemocratic developments in the domestic legal system having a clear detrimental effect on the functioning and the independence of the judicial system. Following the disclosure of the alleged corruption cases in December 2013, which underlined the alleged role of the four ministers of the cabinet and the son of the then Prime Minister Mr. Recep Tayyip Erdoğan, a number of worrying developments have been observed with respect to the rule of law and the independence of the judiciary. As noted by the Parliamentary Assembly of the Council of Europe (PACE), “The disclosure of corruption cases on 17 and 25 December 2013, allegedly involving four ministers and the son of the then Prime Minister Mr Recep Tayyip Erdoğan, marked the beginning of changes in domestic political processes, in particular the adoption of restrictive legislation (amendments to the Criminal Code and the Code of Criminal Procedure in 2014 and the Internal Security Act of March 2015) and the executive’s increased control over the judiciary (amendments to the law on the High Council for Judges and Prosecutors in 2014), the creation of special courts (“criminal peace judgeships”) in June 2014 and the adoption of Law No. 5651 on the internet in March 2015, increasing the Turkish Telecommunications Directorate’s (TIB) capacity to block websites”. 1

3. The storming changes of legislation and institutional structure by the executive in 2014 through its clear majority in the Parliament enhanced the perception that the justice system is controlled and changed by the state conveniently to serve its purpose as shown by the adoption of amendments to the Turkish Criminal Code and Code of Criminal Procedure as well as the restructuring of the High Council of Judges and Prosecutors in 2014. The legislative changes were utilised at the hands of the executive through its majority in Parliament as a powerful and convenient tool to succeed the desired outcome. As also pointed out by PACE2, the expression “reasonable doubt” was changed to “strong doubt based on concrete evidence” by means of an amendment to Article 116 of the Code of Criminal Procedure on 21 February 2014 at the time of the corruption investigations, which made it more difficult to issue a search warrant when this was not desired by the executive amidst the corruption charges. The wording of the article was later on changed back to “reasonable doubt” on 2 December 2014 just before the police operations on 14 December 2014, to make it easier to issue a search warrant.

4. The amendment to Article 153 of the Code of Criminal Procedure (CCP) on the defence counsel’s access to preliminary procedural files, adopted by the parliament on 2 December 2014 in its Omnibus Act, made it possible to restrict the rights of defence lawyer to examine the file and take copies of the documents from the file by means of a decision of a judge following the request of the public prosecutor, if it would danger the purpose of the investigation. In almost all the investigations relating to the executive fight against the so-called parallel structure and all the purging activities since the attempted coup of July 2016, there has always been a restriction order issued by the criminal peace judgeship in each investigation. Since the disclosure of the corruption investigations, this amendment of the CCP has effectively left all the suspects with no means to actually learn about the factual allegations except the abstract citing of the crime in the judicial decisions. This has put many in a disadvantageous position in the criminal proceeding in filing applications and seeking remedies against the measures ordered by the peace judgeship on issues like arrest, detention, seizure and so on.

5. Following the 17 and 25 December 2013 corruption probes, the executive sought desperately to prevent the corruption investigations from being further processed. One of the early attempts was to amend the ‘Regulation on Judicial Police’ on 21 December 2013 in a clear violation of the Code of Criminal Procedure (CCP) and the Constitution. The amendment was intended among other things to subordinate the judicial law enforcement officers to the authority of the regional governors and also make it compulsory to notify the governors of the provinces to be informed of any criminal investigation. This enabled the executive to be informed on all the ongoing investigations immediately and to take necessary measures such as changing the police officers involved in the investigations. A stay of execution was granted by the Council of State following an application by the main opposition party (CHP) which barred the amendment taking further effect.3 The clear intention behind the amendment was to disclose any pending investigations in relation to the members of the government or the ruling party and also switch more power to the executive section of the government in the handling of the criminal investigation.

6. A second move came in the form of forcing a reshuffling of the Turkish High Council of Judges and Prosecutors. The distribution of members in the three chambers of the High Council was viewed a ‘must’ change for the executive following the breakout of December 2013 corruption investigations. The powers of the First Chamber on the appointment and transfer of judges and prosecutors were the key for the executive to prevent any investigation from advancing and to shape the judiciary further. The executive (then the prime minister) geared up its pressure on the members of the Turkish High Council for a reshuffling in early January 2014.4 Finally, the Minister of Justice, in a swift move to accomplish this, called for an extraordinary meeting of the general assembly and proposed the reshuffling of the Turkish High Council. As a result, the two members who were considered to be opposing the executive demands were transferred from the First Chamber to the other chambers in return for the two pro-government members from the other chambers to the First Chamber on 15 January 2014.5 With this critical move, it was believed that the executive clearly got control of the First Chamber for the incoming appointments and transfers of the judges and prosecutors. It is now obvious that following the changes and transfers of judges and prosecutors in the probes, the corruption investigations were stopped and the suspects first released and then acquitted.

7. A third move by the executive to get more control of the judiciary came in the form of a comprehensive amendment in the Law No. 6087 of the Turkish High Council Law, exerting more executive control over the functioning of the High Council of Judges and Prosecutors. The bill was intended to limit the powers of the general assembly of the Turkish High Council and strengthen the role of the Minister of Justice over the formation and functioning of the High Council in general. The unconstitutionality of the bill was raised by all the opposition parties as well as by a great majority of lawyers and jurists.6 More significantly, a provisional article allowed the Minister of Justice to reorganize all the staff at the High Council with the exception of the elected members whose status were based on the Constitution. The provisional Article 4 provided that “with the entry into force of the law, the positions of the Secretary General, Deputy Secretaries, the President of the Board of Inspectors and Vice Presidents, High Council inspectors, rapporteur judges and all the administrative personnel shall be terminated”. Even if the Constitutional Court annulled the law, these personnel could not be reinstated to their previous posts, as the Constitutional Court decisions did not have retroactive effect under Article 153 of the Constitution.7 The executive thus succeeded in terminating the position of all the staff at the High Council, which was normally a prerogative of the General Assembly of the High Council.

8. The reshuffling of 15 January 2014 changing the composition of the First Chamber and the new appointments to the critical clerical positions at the High Council following the mainly unconstitutional amendments of the High Council Law No. 6087, the Ministry and the executive inserted more control over the formation and functioning of the High Council. The appointment and transfer decrees of the First Chamber following the shifts of 15 January 2014 displayed the extent of the arbitrary transfer of judges and prosecutors from their positions in violation of the regulations and the settled principles of the High Judicial Council. All these reassignment decrees had a clear aim of purging all the critical positions in the judiciary across the country, which might have impact on the ongoing corruption investigations especially against the government.

9. It is important to underline some of the developments in the judiciary to display how the judiciary had been systematically forged in the days up until the creation of the criminal peace judgeships.8 The first reassignment decree was put into effect on 16 January 2014 just the next day following the transfer of two pro-government members to the First Chamber. The newly formed First Chamber reassigned the Chief Prosecutor of Istanbul on 16 January 2014 as part of a reshuffle involving some further 20 public prosecutors in critical positions.9 A second move came in with another decree of the First Chamber on 22 January 2014 by reassigning as many as 96 judges and prosecutors, including the Chief Public Prosecutor of Adana (conducting an investigation on weapons and ammunition transport by the National Intelligence Service to the warring oppositions in Syria) and İzmir (conducting İzmir harbour investigation involving businessmen close the governmental circles).10 A further number of 166 judges and prosecutors were reassigned to new posts on 11 February 2014 in another wave of purge by a decree of the First Chamber.11 The judicial council reassigned further 271 judges and prosecutors on 23 March 2014 in another wave in the judiciary amidst the ongoing corruption and graft probe of December 2013.12 A further decree replacing 2,224 general and 293 administrative judiciaries was released by the First Chamber of the High Council on 11 June 2014. This was a fatal blow of purging which came in the form of an ordinary but in fact an extra-ordinary annual appointment and transfer decree.

II. Creation of Criminal Peace Judgeships

10. The point about listing in the first section above all the reassignments in the judiciary is to display the development up until the creation of the criminal peace judgeships. The executive had thus succeeded in taking extensive control of the judiciary mainly through a change in the formation and functioning of the High Council. Following the corruption investigations, which the prime minister and the governmental circles named as a ‘coup attempt’ in an effort to topple the government, the first criminal investigations started in Adana and Ankara in early 2014 against the police officers who were involved in the December 2013 corruption investigations. The police officers initially arrested by the courts were however later on released by other courts following the objections on the ground that there was no concrete evidence. The then Prime Minister Recep Tayyip Erdoğan stated his annoyance of the release of police officers in the following words: “how could the police officers not be arrested despite the apparent evidences?”.

11. To the question “will there be an operation to the parallel structure” addressed by a journalist on 22 June 2014, the then Prime Minister responded that “the parallel judiciary is thwarting the executive’s steps. Some legislative regulations we have just made are before the President. Swift steps shall be taken as soon as he approves them.”13 In the same speech, the prime Minister stated, signalling the operations to be started on 22 July 2014 against the police officers who conducted the corruption investigations in December 2013, that “We are developing a project. We are making the groundwork for this”.14 The legislative regulation awaiting before the president, which was called by the then Prime Minister as a ‘project’, was the Law No. 6545 of 18 June 2014 which came into force on 28 June 2014.15 Similar views were expressed by the Prime Minister during the course of his visit to the Vice President of a political party (BBP), Remzi Çayır. Mr. Remzi Çayır reported Prime Minister Erdogan as saying that “We have made regulation on criminal peace judgeships. It is now before Mr Abdullah Gul; I will rub them [meaning the Gulen movement] out within the course of one week, ten days when it comes about”.16 Even though Mr Remzi Çayır repeated this conversation having taken place between him and the then Prime Minister in a TV program, this conversation was never denied by Mr Recep Tayyip Erdoğan.17

12. The First Chamber of the High Council, which had been reassigning judges and prosecutors in the course of 2014 with its new composition following the executive influenced change on 15 January 2014 (see above), appointed 6 criminal peace judges to the Istanbul Court House on 16 July 2014. The Prime Minister stated in Ordu Province on 20 July 2014 that “The judicial process is starting; (this process) is to be carried out by the criminal peace judgeships”.18 He also explained on the same day that “You know the appointments have been made in relation to the criminal peace judgeships in addition to these appointments in order to fight with the parallel structure. All of these will start conducting their duties as of tomorrow. We will see what will happen both in the police and the judiciary”.19 The head of the executive was never shy to express publicly the real and the specific purpose of the establishment of criminal peace judgeships i.e. to fight against the supposed members of the Gulen group.

13. The criminal peace judgeships began their duties on 21 July 2014. On the very same day, one of these judges, Mr. Hulusi Pur, issued search and seizure orders in respect of over 100 police officers allegedly linked to the parallel structure, by investigating 106 folders, 7 hard disks, wire tapings belonging to 238 persons, a CD of 1292 pages and umpteen documents within the first day of his appointment. It is just impossible to accomplish such extensive work, which suggests that no actual judicial scrutiny was ever conducted by the criminal peace judgeship apart from ordering such measures on the pre-listed police officers. The search and custody measures began to be implemented just after mid-night on 22 July 2014 against the police officers who once conducted the corruption investigations involving the ministers and the son of the then Prime Minister. The then Prime Minister admitted that he himself and the executive were actually at the centre of the ongoing judicial process, by saying that “Now account has been asked for, you will see what else to come about, what else, … not finished yet, this is just a beginning”.20

14. The then prime minister did not need to hide the fact that he himself and the executive got these judicial decisions taken with a specific purpose, which were seemingly ordered by the public prosecutors and the criminal peace judgeships. The then prime minister, referring to the operations directed to the police officers involved in the corruption probes against the four ministers and his son, stated in his address to the public in Gaziantep on 07 August 2014, “We said we would get into their caves; was it done? (Yes). We continue to get into.” He himself proclaimed to the public that the actual decision maker behind these judicial decisions was himself and the executive, which were on appearance ordered by the prosecutors and criminal peace judgeships. Similarly, the then prime minister, referring to the appointment of trustees to the company which owned the Zaman Newspaper and the seizure of the Zaman outlets through the use of police force on 4 March 2016, stated in a public address in Burdur on 11 March 2016 that “What did I say? We would get into their caves. Did We? Are we continuing to get into?”21 He expressly stated that he was the decision maker behind the appointment of the trustees to a media group, which should have been thought to be ordered by a criminal peace judgeship.

15. The chronology of the events and public statements made by Mr. Recep Tayyip Erdogan on the establishment of the criminal peace judgeships clearly evidence that the criminal peace judgeships were created, structured, staffed and instructed by the executive specifically in order to fight against what Erdogan and his government called the ‘parallel state structure’ allegedly linked to the Gulen group.22 Thus, the criminal peace judgeships were specifically created to take all the precautionary judicial measures necessitated by the existing and future investigations against the police officers and judges involved in the corruption investigations of December 2013 as well as to fight against the persons allegedly linked to the Gulen group. Thus, most of the allegedly committed crimes date back to the creation of the criminal peace judgeships which would raise the issue of violation of the principle of ‘natural judges’.

16. The creation of such special criminal peace judgeships is incompatible with the principle of ‘natural judges’ enshrined under Article 37 of the Constitution, which provides that “no one shall be put to trial before a body other than the court he/she is legally subject to. No extra ordinary judicial bodies shall be established that would lead to putting a person to trial before a body other than the court he/she is legally subject to”. This provision prohibits the creation of courts with a competence to try cases relating to the events which took place before their creation. The legislature may of course have competence to reorganize the judicial system by setting up new courts and abolishing certain courts. This should not be carried out however with the aim of violating the principle of ‘natural judge’. The creation of criminal peace judgeships sets a clear sample as to how a court or judgeship can be created with a specific political motivation and thus the principle of natural judge can be violated.

17. The principle of ‘natural judge’ guarantees that an individual may not be tried by a court or judgeship which was created before the crimes were allegedly committed and prohibits the establishment of a court specific to an event. There is ample evidence as outlined above that the criminal peace judgeships were intentionally created against a specific societal section i.e. the so-called Gulen group. A judgeship devoid of the safeguard of the ‘natural judge’ cannot be considered as ‘a judge or other officer authorised by law’ under the provisions of Article 5(3) of the ECHR. The respective provision states that “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” The creation of the criminal peace judgeships in order to try specifically the events that allegedly took place prior to its establishment violates the principle upheld by Article 5(3) of the ECHR.

18. A number of international institutions believe that criminal peace judgeships are perceived as being close to the executive following the reshuffling of the judicial institutions after the December 2013 corruption investigations, and the politically motivated appointments and transfers of judges and prosecutors continued. The Amnesty International for instance observes that criminal peace judgeships with jurisdiction over the conduct of criminal investigations, such as pre-charge detention and pre-trial detention decisions, seizure of property and appeals against these decisions, came increasingly under government control.23 For instance, almost all of the 112 judges initially assigned to the criminal peace judgeships in 2014 were members of the YBP group (Platform of Judicial Unity) established by the government which won the judicial election in October 2014.

19. The Constitutional Court however in its decision on 14.01.2015 dismissed the allegations raised in the constitutional challenge, stating that it cannot be alleged in objective terms that such judges are not impartial. The Constitutional Court thus unanimously rejected the application for annulment of Article 10 of Law No. 5235 on the establishment of criminal peace judgeships; and rejected by a majority the application for annulment of sub-paragraphs (a) and (b) of Article 268/3 of Law No. 5271 on the procedure of appeal against the rulings of these judgeships.24 It is worth noting that five members of the Constitutional Court were of the opinion that the rules relating to the appeal procedure against the rulings of these judgeships violated the Constitution. The Constitutional Court applied a formalistic criterion over the constitutionality of the establishment of the criminal peace judgeships and did not find it necessary to question the substance of the claims in terms of the specific purpose of their creation, appointment process, functioning and flagrant cases of partiality.

20. The ‘criminal peace judgeships’ (‘super judges’) were given sole authority for taking decisions in relation to the investigations and appeals against decisions, especially on issues concerning custody, arrests, property seizures and search warrants. These judges can decide on the launch of investigations (based on ‘reasonable suspicion’) and pre-trial detention (based on ‘strong suspicion’) for crimes that can be punished by at least two years of imprisonment. They combine the function of investigative judges and ‘judges of the liberties’, deciding on arrests, seizures, wiretaps and searches, pre-trial detention and release from pre-trial detention. The criminal peace judgeships basically take the most drastic measures up until the trial stage of a judicial prosecution, which depending on the case may last from one to two years or perhaps more. The intention of the executive for rushing to create these judgeships, appears to be with the purpose of taking under immediate control the investigation stage through the operation of criminal peace judgeships who would be specially and selectively appointed in limited numbers to different court houses.

21. The types of decisions taken by the criminal peace judgeships are not only limited to real persons. The criminal peace judgeships are also used as a judicial apparatus to seize and take control of private property and businesses under the disguise of criminal prosecution. The same judgeships thus appoint trustees as part of the criminal procedure on the usual allegation of financing terrorism, which resulted in taking over the assets of billions  of dollars worth of private businesses and institutions. For instance, the Ankara 5th Criminal Peace Judgeship decided on 26 October 2015 to appoint a trustee panel to the Koza İpek group, which also owned the İpek media group.25 The 6th Istanbul Criminal Peace Judgeship ruled on 4 March 2016 to appoint trustees to take control of the largest opposition media groups, Zaman and Samanyolu.26 The 6th Istanbul Criminal Peace Judgeship is the same judgeship that rejected the demand to release the two arrested journalists Can Dündar and Erdem Gül of Cumhuriyet newspaper back in December 2015. A panel of trustees were appointed on 18 August 2016 by the Kayseri 2nd Criminal Peace Judgeship to the giant Boydak Holding, a prominent business conglomerate located in Kayseri over alleged links to the Gulen Group.27

22. The decisions of ‘criminal peace judgeships’ can only be appealed to another criminal peace judgeship, which raises question about fair process. Under Article 268(3-a) of the Code of Criminal Procedure, the decisions of a criminal peace judgeship can only be appealed to the next number of criminal peace judgeship that follows in row if there are more than one criminal peace judgeships and the decisions given by the last number of criminal peace judgeship will be appealed to the first number of the criminal peace judgeship in the same jurisdictional area. If there is only one criminal peace judgeship in a jurisdictional area, the decisions can be appealed to the criminal peace judgeship sitting in the closest jurisdictional area. When an arrest and detention order is issued pending trial for instance, by the 1. criminal peace judgeship, that decision can be appealed to the 2. criminal peace judgeship. If an objection to a detention order is refused for instance by the 3. criminal peace judgeship (assuming there are only three judgeships), that decision can be appealed to the 1. criminal peace judgeship. Thus, these courts clearly act as ‘closed circuit’ courts, which may be considered going back to the old ‘courts of special jurisdiction’ after Turkey abolished the problematic special courts in 2014, which were dealing with the so-called ‘coup cases’ and subsequent mass trials (Ergenekon, Balyoz, etc.).

23. Whereas under the previous rules of the Code of Criminal Procedure, the decisions of the ‘criminal courts of peace’ in the course of the investigations during the pre-trial stage, could be appealed to the ‘criminal court of first instance’ through an automated file distribution system in the court houses. As there was no assigned criminal court of first instance on duty for deciding on such appeals, an objection file could be distributed to any ‘criminal court of first instance’ available and even sometimes to assize courts in the courthouse to be allocated by an automation file allocation system. As no one could predict and direct which ‘criminal court of first instance’ will decide on the appeal to a specific file, the courts will be relatively free in principle from any influence. This would mean that an appeal to a decision of a criminal court of peace could go to as many as 50-60 judges in large courthouses, which could guarantee some degree of independence and impartiality of the judiciary. Whilst, the decision of a ‘criminal court of peace’ was reviewed by a ‘criminal court of first instance’ standing higher in the hierarchy through the random distribution of files among so many courts, the new system of criminal peace judgeship allows the review of a criminal peace judgeships decisions only by another criminal peace judgeship which are specifically appointed in limited numbers.

24. Article 19 of the Turkish Constitution and Article 5 of the ECHR contain parallel provisions in terms of their wordings, contents and purposes as regards ‘the right to liberty and security’. The said similarity also exists in relation to Article 19(8) of the Turkish Constitution and Article 5(4) of the ECHR. Article 19(8) reads as follows: “Persons whose liberties are restricted for any reason are entitled to apply to the competent judicial authority for speedy conclusion of proceedings regarding their situation and for their immediate release if the restriction imposed upon them is not lawful.” Article 5(4) of the ECHR provides that: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” The aim of both regulations is to provide the individuals detained with an effective legal remedy by which they can defend their freedoms, which may be accessible, allowing reasonable degree of success and creating the feeling of justice and thus preventing public authorities from arbitrarily restricting their right to liberty and security.

25. This aim will not be effectively realized when there are for instance two criminal peace judgeships, each of which is reviewing the other’s decisions. Each judgeship will be aware that it is controlling the decisions of the judgeship which will also review its own decisions in turn. This will create a vicious circle among the criminal peace judgeships which will consider the appeals of one another's decisions. This closed-circuit appeal mechanism will result in the objection procedure becoming ‘ineffective and control in appearance’. This appeal system removes the possibility of effective control over the most serious intervention to the right to liberty and security such as arrest and detention, which should have been provided through assurances by a higher judicial authority. The previous system thus provided in principle the possibility of review of arrest and detention orders from ‘a different viewpoint by higher courts with a higher level of assurance’. The existing system among the criminal peace judgeships further increases the problem of ‘internal institutional blindness’ when it operates as a closed-circuit appeal system. Thus, the close-circuit appeal system among the criminal peace judgeship is far from satisfying the legal guarantees enshrined under Article 19(8) of the Constitution and Article 5(4) of the ECHR.

26. Further, the decision given following an appeal to the criminal peace judgeship is final. Therefore, an appeal to this decision must be reviewed by a higher court in the hierarchy of the court structure whenever this is available. Article 2(1) of Protocol No. 7 of the ECHR (Turkey is not yet a party) provides that anyone receiving a criminal punishment shall be entitled to request the review of his conviction or punishment by a higher court. It is also a universal principle of criminal law and an inherent nature of the appeal institution that the review of a conviction shall be undertaken by an impartial higher court in the structure of the court system. It cannot be argued that the same logic and the same characteristics deriving from the nature of review institution may not be valid for the appeal (objection) institution as a legal remedy. There are three criminal courts in the hierarchy of the criminal court structure under Turkish law situated at first instance level: criminal peace judgeships, criminal courts of first instance and assize courts. The legislative authority given by Article 142 of the Constitution in regulating the courts through acts of parliament cannot be taken to mean that the legislature can regulate this in any manner that it sees fit when there are higher courts in the system superior to the judgeships.

27. The independence and impartiality is the founding elements of a court or judgeship within the context of Article 5 of the ECHR (D.N. v. Switzerland; Nikolova v. Bulgaria, para. 49). An organ which is not independent and impartial may not be regarded as a court in the understanding of the ECtHR, even if it is named as such (Beaumartin v. France). The ECtHR, following its determination of a court as not independent and impartial, held that that court could not be considered as a court within the meaning of Article 5 and that the applicant’s custody period would not end by the decision of that court and thus Article 5(3) of the ECHR was violated (Assenov and Others v. Bulgaria, para. 148-149). According to the Court, appearing before a judge who is not independent and impartial will not be considered to ‘be brought promptly before a judge or other officer authorised by law to exercise judicial power’ and will not end the custody period and thus Article 5(3) of the ECHR is violated (Assenov and Others v. Bulgaria, para. 146-150, Nikolova v. Bulgaria, para. 51-52).

28. The ECtHR assesses the independence of the judiciary on the basis of three criteria: the manner and period of appointment of the members of the court, the availability of guarantees against external influences and the appearance of the independence of the court (Findlay v. UK, para. 73). One of the most important determinations of a court’s independence is the guarantee that the judges cannot discharged from their existing duty without their request before the expiry of their terms, saved for appointment to a higher court (Campbell and Fell v. UK, para. 80; Lauko v. Slovakia, para. 63). There are scores of examples of the violation of this guarantee by the Turkish Judicial Council following its new formation since the government driven judicial election in October 2014. For instance, the independent election candidate, Mrs. Ayşe Neşe Gül, who received the 4816 votes from her fellow judiciaries, who had been working in the Ankara Courthouse just less than one year, was transferred to Edirne without her request just within 45 days following the election. The workplace of the Judge Bahattin Aras was shifted five times within a year without his request in 2015. The summer decree of the Turkish Judicial Council of 12 June 2015 reassigned a very high number of 2665 judges and prosecutors, 900 of whom were reassigned before the expiry of their terms and without request.28 Another decree of by the Turkish High Council of 15 January 2015 reassigned 888 judges and public prosecutors in the dead of winter without their request, which is not a regular time for reassignment.29 The summer replacement decree of the Turkish Judicial Council of 6 June 2016 also reassigned twice the number of a normal reassignment with a number of 3228 judges and prosecutors.30

29. The intense circulation among the criminal peace judgeships is also another sign of arbitrary reassignment of the judges when they did not satisfy the executive with their decisions and ‘expected’ performance. There were initially eight judges appointed to the criminal peace judgeships in the Ankara Court House by the High Judicial Council Decree No. 1644 of 16.07.2014 (Hülya Tıraş, Seyhan Aksar, Hasan Çavaç, Bahadır Coşlu, Yavuz Kökten, Orhan Yalmancı, Deniz Gül, Faruk Kırmacı). Seven out of these eight judges were removed from their positions as criminal peace judgeship within the course of the one year from 16.07.2014 to 28.07.2015. For instance, the three of the above listed judges were removed from the Ankara criminal peace judgeships on 09.03.2015 apparently due to the fact that Judge Orhan Yalmancı did not arrest 24 police officers referred by the prosecutors for detention on 01.03.2015, Judge Hasan Çavaş refused the objections filed against the release of some suspects, Judge Seyhan Aksar released some of the suspected police officers in a previous investigation. Judge Hülya Tıraş was also removed from 7. the criminal peace judgeship within two weeks of her releasing order concerning 25 suspects on 14.07.2015 after having been detained for 110 days. The judge of Eskişehir 1. Criminal Peace Judgeship, Mr. Kemal Karanfil, was also reassigned by the decree of the High Council of 15 January 2015, well before the expiry of his assignment without his request, since he referred a case before him to the Constitutional Court to decide on the unconstitutionality of the criminal peace judgeship. The member of 2. Court of Assize in Bakırköy (Istanbul) Court House, Mrs. Nilgün Gündalı, who cast a vote for the release of Istanbul judges Metin Özçelik and Mustafa Başer in the course of regular review of their detention decisions on 24 July 2015 was reassigned to the employment court by the Judicial High Council just one day after. The main reason behind the removals of these judges was that they either did not issue detention orders for some suspects or accepted some of the objections against the detentions and therefore released the suspects in investigations relating to the police officers.

30. Further, Mr. Recep Tayyip Erdoğan, after becoming president, publicly stated that he would get the Gulen Movement put into the ‘National Security Policy Document’ (NSPD) (the so-called Red Book) as a ‘terror organisation’. President Erdoğan stated to the journalist on board the plane on his return from Belgium “the judiciary will decide from now on according to the Red Book.” 31 This would mean that the courts will base their judgement not according to the Constitution, laws and universal legal principles as dictated by Article 138 of the Constitution but according to the NSPD (the so-called Red Book), an officially confidential document, not publicly accessible and foreseeable, whose contents are not known by the public and as such not a source of law. There are numerous examples of these NSPD instructions having been put into the actual judicial practice by the criminal peace judgeships. For instance, the 3. Criminal Peace Judgeship of Istanbul Anadolu Court House included the following reasoning in its decision No. 2015/2983 of 8 September 2015: “… as they provided financial support to the terrorist organisation, which was accepted as (PDY/Fetullahist Terror Organisation, Fetö) by means of recommendation by the National Security Policy Document and following this recommendation also by the Decision of the Council of Ministers.” Similar statements can also be found in Istanbul 9. Criminal Peace Judgeship in its decision No. 2015/1291 of 7 September 2015. All these judicial decisions prove that the executive instruction to the judiciary “the judiciary will decide from now on according to the Red Book has been fully complied by the criminal peace judgeships. This is yet another clear evidence of the fact that these judgeships are operating according to the policy and administrative directions of the executive and not according to the legal, Constitutional and international legal principles. This raises questions of a violation of the principle of legality (Article 38(3) of the Constitution) and presumption of innocence (Article 38(4) of the Constitution, Article 6(2) of the ECHR) as well as the independence and impartiality of the judiciary (Article 138(2) of the Constitution, Article 6 of the ECHR).

31. The statements of various figure heads in the Turkish executive and judicial structure made it almost impossible for the judiciary to function in an independent and impartial manner especially in relation to the executive unyielding fight against the allegedly Gulen affiliated persons. For instance, the President on his return from Ukraine stated on 20 March 2015 that “We are closely following the judges deciding on the cases related to the Parallel”, signalling a clear warning that there might be repercussions of the unsatisfied decisions by the prosecutors and judges dealing with these cases. A judge listening to this statement and knowing that at least 15 (out of 22) members of the High Council were determined either directly or indirectly by the executive cannot act without fear and in a manner which is independent and impartial of the executive in cases relating to such groups. After the Judicial High Council initiated an investigation on the two judges who ordered the release of 63 suspects on 25 April 2015, the President remarked on 26 April 2015 that “the High Judicial Council responded too late”. The President of the 2. Chamber of the Turkish Judicial Council made an unfortunate public statement that “we apologise for acting late.” The two judges, Metin Özçelik and Mustafa Başer, were arrested on 30 April 2015 and 1 May 2015 respectively on the basis of ‘coup against the government’ and being a ‘member of a terror organisation’ without any concrete evidence apart from the reasoning that they had used in their earlier judgments. According to news published by Yeni Şafak Newspaper on 12 June 2015, “Bilgin Başaran, the Secretary General of the Turkish Judicial Council expressing that the Turkish High Judicial Council (HSYK) is behind the members of the judiciary participated in the parallel structure investigations, stated that what is necessary will be done again in the same way, in case a kamikaze judge incident like the one in May is planned or put into practice”, referring to the release of suspects by Judges Metin Özçelik and Mustafa Başer, which resulted in the judges’ arrest.32

32. On 29 May 2015, Can Dündar, the editor-in-chief of the daily Cumhuriyet reported news on the trucks apparently operated by the National Intelligence Service, stopped in Adana, which disclosed that loads of weapons and ammunitions were being transported to Syria on 19 January 2014. The President Erdoğan, in a TV program broadcasted live on TRT 1 following this event, stated that “these slanders directed towards the National Intelligence Service; the illegitimate operation conducted; this is in a sense a spying and espionage activity. This newspaper has got involved in this espionage activity too. The figures and so on are given there. What is the source of these figures? From whom did you get these figures? From the Parallel Structure. I have instructed my lawyer and opened the trial straight away. This is a perception operation on behalf of some. … The person making this report as a special news, I reckon, will pay the price heavily; I will not let him go.”33 Can Dündar who reported the news was arrested on 26 November 2015 on the ground of spying and espionage and supporting the terror (parallel structure) organisation without any piece of concrete evidence by the Istanbul 7. Criminal Peace Judgeship, which was the same reasoning used by the president in his public statement. After Can Dündar’s release following a decision of the Constitutional Court upon an individual petition, the President Erdoğan continued to express his discontent with the judgment of the Constitutional Court and on one occasion he said that “I do not have to be in a position to accept that decision and do not comply with that decision; neither do I respect.” On 16 March 2016, the Venice Commission expressed its concerns over these political statements and stated that the explanations against the Constitutional Court clearly violated the founding principles of the Council of Europe (democracy, rule of law and protection of human rights), to which Turkey is also a party.34

 

III. Criminal Peace Judgeship under Emergency Law Decrees

 33. It is important to underline that in the days up to the abortive coup of 15 July 2016, the President and his executive pressed for a number of actions which may not be considered within the confines of the rule of law, independence of the judiciary and protection of human rights. The President, during a public speech on 27 May 2016 in Kırşehir after the National Security Council (NSC) meeting on 26 May 2016, made the following explanations: “Yesterday we took another new decision (at NSC). We said the illegal terror organisation which has legal appearance. We took a decision on the Fetullahist Terror Organisation as a recommendation and send it to the government. Now we are awaiting from the government the decision of the Council of Ministers. We will get them registered as a terrorist organisation too. They will be put into the same prosecution process as in PYD, YPG or PKK. Because they have made this people suffered a lot. They have broken up this Nation, Ummah. We cannot let them dismantle this Ummah. Some have escaped, some are in jail.”35 The Deputy Prime Minister and the Spokesperson for the government, Mr. Numan Kurtulmuş, in a press conference following the Council of Ministers meeting on 30 May 2016, stated that “A new phase has been staged in combatting with the Parallel Structure with the recommendation of the National Security Council (NSC). The PDY (Parallel State Structure) has been specified for the first time as a terror organisation by means of a recommendation at the NSC meeting and the main framework of combatting from now on has been brought in line with combatting a terror organisation too. Therefore, everything that this requires will be fulfilled both by the Government and the respective units of the judiciary and the implementation will be maintained without any delay.36 All these steps taken by the President and his executive display that there have already been significant ground works for massive arrests and other judicial measures to be issued by the criminal peace judgeship in the executive’s fight with the Gulen group, which it named it as terror organisation through executive action.

34. Following the abortive coup of July 2016, a wave of prosecutions started as part of the overall purging mission initiated by the government seemingly as a response to the failed coup. It has nevertheless quickly turned out that most of the prosecutions have nothing to do with the actual coup attempt but on the basis of allegations of membership, relationship or affiliation to the Gulen group (the government claims it to be a ‘terrorist’ group). The figures of dismissals, closures, seizures, prosecutions, arrests, bans etc. have greatly expanded since the failed coup and have now reached a tremendous scale, already undermining the state structure in the field of defence, security, judiciary, education and so on. The criminal peace judgeships have become all the more important and functional for the executive and its functionaries in the judiciary for the wave of massive arrests and other dramatic measures taking place in the chaotic circumstances following the attempted coup of 15 July 2016. The criticisms outlined above in relation to the structure and functioning of the criminal peace judgeship had a far too devastating impact not only due to the very high numbers of persons involved but also as a result of extraordinary powers given to the criminal peace judgeships and other judicial and non-judicial official bodies under the emergency decree laws.

35. The measures taken on the judiciary is the most striking one, as it involves a large number of the judiciary including senior members of the judiciary. The dismissals and prosecutions also included two (2) members of the Constitutional Court, five (5) present and ten (10) previous members of the High Council as well as fourteen (14) election candidates to the High Council. Around 4.000 judges and prosecutors have been dismissed by the High Council without any individualised procedure and without a right of defence. Nearly 3,000 judges and prosecutors, 170 of which are members of the supreme courts have also been subject to criminal procedure and currently under arrest. The Constitutional Court, the Turkish High Judicial Council, the Court of Cessation and the Council of State put their signature under the dismissal of their members, relying on the emergency decree law without any concrete evidence, any right of defence and any individualisation of alleged actions.37 The post-coup purge in Turkey includes 123,934 persons sacked, 90,875 detained, 44,524 arrested, 2099 schools, dormitories and universities shut down, 6986 academics who lost jobs, 3,843 judges and prosecutors dismissed, 149 media outlets shut down and 162 journalists arrested since July 2016.38 The criminal peace judgeships have been the most exploited and spoilt instruments especially in the resulting high number of arrests and detention orders amidst the failed coup. The most striking example of the types of measures taken by the criminal peace judgeships is the arrest and detention of 2745 judges and prosecutors at one go just within a single day on 16 July 2016 following the attempted coup.

 

Conclusion

36. The December 2013 corruption investigations proved to be a milestone in Turkish judicial history in that they have triggered the deterioration of the Turkish judicial and criminal systems that have never been witnessed on this scale. Facing one of the biggest corruption charges of history involving the four cabinet ministers and the son of the then prime minister, the executive sought to change the judicial and criminal system in an effort to exert more influence over the functioning of the judicial system. The executive first rushed to take under immediate control the Turkish High Judicial Council in order to exert more say over the continuing investigations and on the judiciary. The executive through its parliamentary majority control also implemented a number of legislative changes with a view to mold the judicial and criminal system further.

37. The report provides ample evidence that the criminal peace judgeships were designed, structured, staffed and instructed by the executive specifically in order to rage a war against the persons allegedly linked to the Gulen group which Mr. Recep Tayyip Erdogan and his government first called the ‘parallel state structure’ after the December 2013 corruption investigations and later as ‘a terror organisation’. The expressed intention behind the creation of criminal peace judgeships, the politically motivated appointment of judges and prosecutors, an appeal system operating as closed circuit allowing reviews only among the judgeships, the image of partiality and working under the executive’s instruction which were also supported by the executive’s public explanations, have all cast clear doubts as to the independence and impartiality of these judgeships, a prerequisite and sine qua non nature of any “judge or other officer authorised by law to exercise judicial power” (see Article 5 and 6 of the ECHR). The criminal peace judgeships basing their orders and decisions on the executive policy documents such as the National Security Policy Document (NSPD) is a flagrant example of the executive’s involvement in the judicial process, thus a sheer example of creating crimes through the executive’s action.

38. After the attempted coup of July 2016, the extensive scale of crack down coupled with the curtailment of defence and other basic rights not required by the exigencies of the situation have given rise to the fact that the criminal peace judgeships have become an indispensable convenient instrument for the executive under the states of emergency regime continuously applied since mid-July 2016. The criminal peace judgeships have also become a judicial tool with a wider range to crack down all the opposition groups in Turkey including the liberals, the left, the Kurds or whoever considered to be a threat by the ruling regime. The criminal peace judgeships which were specifically created by the executive for its decisive fight against the parallel structure has thus become an important ‘parallel judicial apparatus’ at the hands of the executive against any threats and opposition under the pretext of terror charges.

1

For the Parliamentary Assembly of the Council of Europe (PACE), Report on the Functioning of the Democratic Institutions in Turkey, 06 June 2016, Do. No. 14078, paragraph 5 (see https://www.ecoi.net/file_upload/1226_1465286865_document.pdf.

2

See ibid, paragraph 60.

4

The then president of the First Chamber of the High Council, İbrahim OKUR, who is now among the thousands of dismissed and arrested judiciary, gave statement to the public prosecutor that he spoke over the phone to the then Prime Minister who asked him to deal with ‘the matter’: see http://www.hurriyet.com.tr/bilal-icin-kisikliyi-basacakmis-40325875; http://www.ntv.com.tr/turkiye/feto-sorusturmasinda-tutuklanan-ibrahim-okurun-ifadesi,rioUtArry0S_KiQETeA1pg

7

The Constitutional Court annulled 19 provisions of the respective law No. 6524 amending the Law No. 6087, see the Constitutional Court Decision of 10.04.2014, 2014/57 E., 2014/81 K.).

8

For a timeline of the graft investigation and the government response, see http://isdp.eu/content/uploads/publications/2014-muller-turkeys-december-17-process-a-timeline.pdf .

22

There is ample evidence and consensus in public opinion that criminal peace judgeships were set up in order to eliminate the Parallel Structure, for instance see https://www.youtube.com/watch?v=Vh4TBPAAB-o .

23

See Amnesty International, Annual Report, Turkey 2015/2016, https://www.amnesty.org/en/countries/europe-and-central-asia/turkey/report-turkey/ .

34

For the “Declaration by the Venice Commission on undue interference in the work of Constitutional Courts in its member states”, see http://www.venice.coe.int/webforms/events/?id=2193

37

For the Venice Commission Report No. 865/2016 of 12 December 2016 see http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)037-e ss. 29-33.

38

For the most recent purge figures in Turkey, see http://turkeypurge.com/ .

THE RECOURSE FOR A JUDICIAL REVIEW TO THE ECHR IS AVAILABLE TO THE REPUBLICANS

Rıza Türmen, the former judge of the ECHR and deputy of CHP, main opposition party, wrote an article. Referring the case-laws of the ECHR concerning the unlawful arrests, he points out that unless the Constitutional Court concludes the individual applications in mostly 1 year, the persons concerned will be able to lodge their applications with the ECHR without trying the remedy of the individual application to the Constitutional Court.

(submitted to the blog by a source who is know to the editor, it’s name is kept confidential for security reasons)

Turkey has become a great prison. Nearly, eveybody has been held under arrest. Since 15 July, the number of the arrested persons has reached fourty thousand. Some of them have been involved in the coup attempt, the other part, on the orher hand, haven’t involved in it, but they don’t have good relations with the ruling party.

The aim of all the legal provisions concerning the arrest; notably as regards the the Article 19 of Turkish Constitution, the Article 5 of the European Convention on Human Rights and Article 9 of the United Nations Convention on Civil and Political Rights, is to protect the individuals against the arbitrary arrests. All of these rules provide the liberty as an essential (fundemental principle) and the arrest as an exceptional case and also point out to the cases in which the liberty of the individuals might be restricted.

The Explanation On the Arrest

In its decision in the case of Buzadji/Moldova, rendered by the Grand Chamber of the Court on 5 July in 2016, the European Court of Human Rights (ECHR) has shed light on a matter of the arrest. In that case, Buzadji is a head of public corporate. He was arrested on charge of a corruption and misconduct in office in May of 2017. Having regard the characteristic of the crime, the risk of escaping and darkening the evidences, his arrest was extended for four times. 2 months later, considering his health conditions, his arrest was turned into the house arrest. He had been held under house arrest till the March of 2008. Then, he was acquitted as a result of his trial.

Criterion of the ECHR

The Court pointed out two issues in its decision. Firstly, according to the case-law of the Court, “a reasonable suspicion” is sufficient for the measure of arrest. However, as the time passes, the Court searches more reasons that will make the arrest be in the right, notably as regards the risk of escaping and darkening the evidences, the probablity of recommitting an offense etc. With this decision, the Court has made a crucial change in its case-law and has established that the reasons that should exist for the continuation of the arrest, shall also exist in the beginning of the arrest. In other words, in order to execute the arrest, not only a “a reasonable suspicion” but also the reasons as regards the risk of escaping or darkening the evidences will be required by the Court.

This change in the Court’s case-law is important for Turkey in this respect: In Article 100 of the Criminal Procedure Code, beside the strong suspicion of committing an offense, the supplement reasons such as fleeing, darkening the evidences, pressure on the witnesses should be required for the arrest. However, if the offenses listed in § 3 of the same Article, are under consideration (catalog crimes), the strong suspicion of committing an offense shall be sufficient for the arrest. The above-mentioned supplement reasons are assumed to exist. Among the offenses listed in this article are forming an organization in order to commit an offense and having a membership in these organized groups etc.

In the context of Buzadji/Moldova case, from now on, the Court will search reasons such as fleeing, darkening the evidences, pressure on the witnesses beside the strong suspicion of committing an offense also for the arrests due to the catalog crimes listed in § 3 of the Article 100.

Abstract Facts

Secondly, in its decision in Buzadji/Moldova case, the Court examined the claims, set forth as a reason for the arrest by the Moldovan Courts. The Court noted that those reasons were abstract and cliché. The Court found that the domestic court had not shown in its reasoned decision how the domestic law concerning the risk of escaping and darkening the evidences and interfering with the witnesses had been applied to the suspect and it had also not assesed the personality of Buzadji, his property, his relations with his country and his behaviours during the investigation in its decision; lastly, the Court established the violation of § 3 of Article 5 of the Convention on the grounds that the reasons submitted at the beginning of the trial had changed later in addition to above-mentioned grounds.

The Public Prosecutor Doesn’t Perform His Duty Properly

The fact that the courts in Turkey submit cliché and abstract reasons in order to arrest and also for the continuation of it is of serious matter. For this reason, despite there are many decisions of the Court on this issue against Turkey (for example the case of Cahit Demirel), somehow this wrong implementation has not changed yet. Never mind about the implementation regarding the cliché and abstract facts, just like in decision of the arrest of the executives and the journalist of Cumhuriyet Daily, the fact that the continuation of the arrest had been decided because of the reason that the evidences had not been gathered and the indictment also had not been prepared yet, was not found even in Moldovan case. Gathering the evidences is the duty of the public prosecutor. As the public prosecutor does not perform his duty properly, the measure of the arrest has been continued and left to public prosecutor’s discretion, which displays just the arbitrariness.

Further, the implementations in respect to the lawyers can not access the files due to the privacy of them or expert reports which become a base to the arrests prevent the use of the right to an examination of the legality of the arrest, called ‘habeas corpus’. How can you lodge an objection to the arrest without knowing why you were arrested? At the same time, it creates a situation contrary to the principle of the equality of the arms between the claimant and the suspects. This examination should be done not over the file but holding a hearing. However, the recent emergency decree law provides an examination over the files, in line with the evidences submitted in the application.

All of the above-mentioned issues should be submitted to the Constitutional Court before lodging with the ECHR. In its decision in Zihni/Turkey case (8.12.2016) and Mercan/Turkey (8.11.2016) case, the Court declared the individual application to the Constitutional Court as an effective domestic remedy.

However, there is one more question. Does the fact that the Constitutional Court has not decided about the individual applications yet despite several months’ve passed over the applications cause the remedy of that to the Constitutional Court not to be effective any more? In this case, does the chance of lodging with the ECHR directly without appealing individual applications to the Constitutional Court appear for the persons concerned?

Rendering a Decision Speedily

It is necessary to handle the matter in the context of § 4 of Article 5 of the Convention which provides ‘habeas corpus’ in which the the legality of the arrest is examined. This article provides that the lawfulness of the arrest shall be decided “speedily” and his release should be ordered if the arrest is not lawful. The ECHR considers the following points in decision making process whether the decision is made speedily or not:

a.The Court takes the “reasonable time” into consideretion in a fair trial. Namely, it investigates the complexity of the process and if the lateness is caused by the competent authorities or the applicant himself. However, in such cases where the right to liberty and security is under consideration, the competent authorities should be more careful and in a scrutiny manner.

b. The issue that the judicial body that reviews the case is whether a first instance court or a high (for appeal) court presents high-level importance. Because, this rule is applied rigidly for the first-instance courts but more flexibly for the Supreme courts. However, these circumstances do not absolve the Constitutional Court from the obligation to decide speedily.

The Recourse For a Judicial Review to The ECHR is Available

Under such conditions, in its decision in Smatana/Chech Republic case, the ECHR found that the disposition time of the individual application which was 1 year and 10 months was too long and similarly in Zubor/Slovakia case, which was 8 months; and established a violation of the § 4 of Article 5 of the convention.

In individual appilications to the Constitutional Court against the arrests, despite the principle of “urgent examination” depends on each case, in case of not being concluded of the applcations by the Constitutional Court mostly in 1 year, the persons concerned might lodge their applications with the ECHR on the grounds that the decisions were not made speedily in aaccordance with the requirement of § 4 of Article 5 of the convention so that the individual application is not an effective remedy.

The executives and columnists of the Cumhuriyet Daily have been held under arrest for 100 days. According to the Article 19 of the Constitution and § 4 of Article 5 of the Convention, the individual applications have not been concluded yet. Unless the Court examines these applications in a shortly time and renders a decision, the recourse for a judicial review to the ECHR will become rendered available for the executives and the journalists of the Cumhuriyet Daily.

If the ECHR gives decisions that establish the Constitutional Court has violated § 4 of Article 5 of the Convention, the chance of the acceptence of the individual application to the Constitutional Court as an ineffective remedy appears and the recourse to the ECRH will become avilable to the arrested persons without trying the remedy of the individual application.

250K member Italian National Bar Association “strongly condemn” arrests of Turkish lawyers

The Consiglio Nazionale Forense, which represents 250.000 lawyers across Italy in 139 Bars and Law Societies of Italian cities, published a letter in which the Council expressed “the strongest condemnation for the final closure of some associations of lawyers and the arrest of many colleagues in Turkey.” The letter also protested “for the arrest, that took place at Istanbul airport, on January 13, 2017, of lawyer Barbara Spinelli, from the Court of Bologna, which, after 17 hours of deprivation of liberty, was permanently expelled from Turkey and repatriated with a flight Istanbul- Bologna.”

http://washingtonhatti.com/2017/02/07/250k-member-italian-national-bar-association-strongly-condemns-arrests-of-turkish-lawyers/

TODAY’S PURGE: (7 FEBRUARY, 2017)

Thousands were dismissed, including many academicians. Prof. Ibrahim Kaboglu, a prominent jurist, leftist and critics to the government is one of them.

http://213.14.3.44/20170207/20170207M1-1-1.pdf

http://213.14.3.44/20170207/20170207m1-1.htm

 

4,464 More Public Servants Purged In New Gov’t Decree In Turkey 

With a new state of emergency decree issued on Tuesday, the Turkish government has dismissed 4,464 more public servants. The relentless purge that gained momentum after a failed coup on July 15, 2016 this time dismissed civil servants from the police force, Ministry of Education, Supreme Court of Appeals and Higher Election Board (YSK).

According to the new decree, numbered 686, a total of 4,464 civil servants are dismissed from state bodies. The decree purged 2,585 more teachers, public servants from the Ministry of Education, 417 police officers from the Security General Directorate and 893 others from the Gendarmerie General Command.

Eighty of those who have been dismissed under new decree are from the Turkish Radio and Television Association (TRT), 48 are from the Ministry of Foreign Affairs, 49 are from the Interior Ministry, 16 are from the Ministry of Culture and Tourism, while 330 are academics from several universities across Turkey.

http://stockholmcf.org/4464-public-servants-purged-new-govt-decrees-turkey/