(Author know to the blog editor; kept secret for security reasons)
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.
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.
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.
See ibid, paragraph 60.
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
On the objections raised for instance see http://www.radikal.com.tr/yazarlar/omer-sahin/12-eylul-benzetmesi-abartili-olmaz-1177048/ .
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.).
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 .
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 .
See Amnesty International, Annual Report, Turkey 2015/2016, https://www.amnesty.org/en/countries/europe-and-central-asia/turkey/report-turkey/ .
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
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.
For the most recent purge figures in Turkey, see http://turkeypurge.com/ .