(Written by a rapporteur judge at Court of Cassation who request his name kept secret for security reasons)
THE BREACH OF THE RIGHT OF THE JUDGES AND PROSECUTORS TO BE PRESUMED INNOCENT AND TURNING OF THE SECURITY MEASURES (ARREST&DETENTION) INTO IMPOSEMENT OF A PENALTY OWING TO NOT BEING BROUGHT AN ACTION AGAINST THEM
1. THE MILESTONES OF THE PROCESS THAT CAUSES DISMISSAL OF THE QUARTER OF THE JUDICIARY
1.1. As it was understood that the corruption and bribery investigation, launched by İstanbul Chief Public Prosecutor’s Office into the Iranian citizen Reza Zarrab who has been also prosecuted in USA on charge of money laundering and also covering the sons of some Ministers and the son of President Erdoğan, would be disclosed by the National Intelligence Agency (MIT), that investigation was turned into the operation on 17 December 2013 and in particular Zarrab, the sons of some Ministers, many pro-gov’t businessmen and the head of a public bank were detained. Despite the second step of the above-mentioned operation had been being planned on 25 December 2013 covering the son of the President Erdoğan with together many pro-gov’t businessmen, Efgan Ala, the Minister of Interior of that time intervened the operation and prevented the law enforcement authorities from performing that operation.
It was for the first time in Turkey that law enforcement authorities under the command of the public prosecutor refused to execute the order of the prosecutor and upon this, the prosecutor conducting the above-mentioned investigation was left no choice but to make a press release in front of the court house reacting the current unlawful situation. These investigations would constitute the turning point on shaping of the relations between the judiciary and the executives. The President Erdoğan personalized these investigations launched into his son and also some members of the cabinet and declared in his meetings obviously that he would get revenge of this investigation. The judiciary, attracting the merciless anger of the President Erdoğan on it, could not be able to display a self-respecting stance against Erdoğan to protect its independence. So, in the subsequent years, the judiciary had to to bear o loss of its attitude. The independence of the judiciary was seriously undermined and the majority of it had pledged a complete allegiance to the President Erdoğan.
1.2. The other crucial event that made the judiciary and the ruling party face to face was the incident of MIT trucks experienced at the beginning of the year 2014. Upon an denunciation, the trucks traveling to Syria was stopped by the public prosecutor, it was established that the trucks were loaded with the weapons, military supplies and explosive substances despite the government authorities declared not so but loaded with the human aid. The crisis ended after the trucks were set free upon the Governer’s Office declared that the trucks were belong to MIT. However, this incident was made the President Erdoğan so angry that he made very hurtful words targeting the prosecutors conducting the MIT trucks investigation and stated that he would get revenge of this incident. Likewise, as seen afterwards, he had got the revenge of that incident in a way he made four public prosecutors, conducting this investigation and many gendarmeria officials and also the general editor Can Dündar and the representative of Ankara Erdem Gül, making this incident a news report, arrested. While the public prosecutors and the gendarmeria officials have been still held under arrest, Can Dündar fled to Germany after the Constitutional Court decision ordering his release from detention.
1.3.The ruling governmet succeeded in turning the investigations of corruption/bribery and MIT trucks, dispacthing military supplies to Islamic State in Iraq and the Levant (ISIL) into the victimization. Claiming that Gülen Movement would overthrow the ruling government by means of those investigations, it made a counter attack.
Accordingly, it practiced several disposals against the judiciary and the security forces. Within this context, firstly, the security officials and the public prosecutors conducting the above-mentioned investigations, were discharged and then İstanbul Chief Public Prosecutor was changed. At the same time, Birol Erdem, the Undersecretary of the Minister of Justice and also the member of the first department of the High Council of Judges and Prosecutors (HCJP) was removed from his office and Kenan İpek was appointed to his position. Similarly, the members of the first department of HCJP were also changed. After a while, a law no.6524 granting vast authorities to the Minister of Justice was adopted. In accordance with this law, the term of office of the Secretary General of HCJP and all the vices of the secretary, all the rapporteur judges and inspector judges of the Council expired automatically.
Despite Abdullah Gül, the President of the Republic of that time, expressed that the law amendment no.6524 was obviously contrary to the Constitution, he did not avoid himself from approving it in order not to come to face to face with his close friend Erdoğan having political islamic opinions just like himself. Later, most of the articles of this law were already annulled by the Constitutional Court, however, due to the rule set by the Constitution that the annulment decisions of the Court can not be applied retroactively, the government had got away with the obvious and unlawful interventions to the judiciary Taking courage from this law amendment no. 6524, the government passed more several laws just like a law that expired the term of the offices of all sitting Court of Cassation (CoC) and Council of State (CoS) members and also changing the structure and composition of CoC and CoS.
1.4 Getting ready to win the coming HCJP elections, the government established a platform on April 2014 called ‘the Platform of Union at Judiciary (YBP)’ in order to create a judiciary completely dependent to itself and never think of going against its orders. First of all, this platform took a photo of the whole judiciary organizing in all of the court houses across the country with the obvious support of the government. Accordingly, all of the members of the judiciary were labeled according to their political opinions or closeness to the ruling party. Then, the prepared blacklists, submitted to the Minister of Justice by the members of YBP, performing across the provinces of the country, were processed by the special teams here and the election preparations were carried out on the light of these blacklists. At last, the HCJP election held on 12 October 2014 was resulted with the absolute victory of the members of YBP who carried out the election preparations in a way benefiting from all kinds of the support of the government such as free transportation, accomodation, meal expenses etc. and also by means of the promises of the government to the members of the judiciary such as salary increase, the exemption of the disciplianary penalties provided that the members supported by the Government won the elections. So, the ruling party had a chance of governing the whole judiciary as it wants thanks to the new HCJP. The blacklists prepared by YBP presented great importance in terms of the disposals of the new HCJP and the determination of the members of the judiciary that would be dismissed from the post of judge immediate after 15 July coup attempt. The new HCJP took its decisions concerning disciplinary proceedings in line with these blacklists and at last all of the judges and prosecutors who were dismissed and arrested after 15 July coup attempt were determined according to these blacklists.
1.5. On the other hand, the president Erdoğan called Gülen Movement as “a terrorist organisation” beginning from the first day after 17 December 2013 despite there has been no court ruling that establishes the movement as a terrorist organization and then he established the specialized courts to struggle with this ‘organisation’. After Erdoğan declared that they were working on a ‘Project’ to struggle with Gülen Movement, ‘the criminal judges of peace’, which constitute the first base of ‘the Project Courts’ were established under the law no.6545 having the jurisdiction to search, confiscate, appoint a trustee, detain and arrest.
2. THE MEMBERS OF THE JUDICIARY WERE DETAINED AND THEN ARRESTED UNLAWFULLY
ONLY A FEW HOURS IMMEDIATE AFTER 15 JULY COUP ATTEMPT
2.1. On the one side, Erdoğan was getting revenge of the 17/25 December corruption/bribery investigations from the judiciary, on the other side, he operated his plan one by one to put the judiciary in such position in which it pledged its alligiance completely to him. In this context, the forming of the HCJP completely under the control of the government was not found satisfactory so that the purge of 5000 judges and prosecutors who did not support the pro-gov’t candidates in HCJP elections held in 2014 was also considered to be necessary. For this purpose, to pasifize and intimidate the opponent members of the judiciary, the new HCJP launched the criminal prosecutions into them just after starting to perform its duty and appointed them to the duties not suitable with their acquirements and also delayed their promotions arbitrarily. All of the opponent judges and prosecutors were appointed to the passive tasks. For instance, despite there was no need for the administratve courts in the southestern region of the country, the tax courts were established in most of the provinces in this region and the opponent judges were appointed to these courts to make them passive. On the other side, some of the judges and the prosecutors who were labeled as opponent to the government were appointed once a year contrary to the Rules of Procedure set in legal provisions and some of them were appointed 5 times in a year.
Shortly, the ruling government of Erdoğan desired to purge the members of the judiciary who did not humiliate to himself, however the legal provisions in force did not allow him to realize his aim. So, while the government of Erdoğan was looking for a solution for his aim, 15 july coup attemp called as ‘a gift from God’ by himself had come to his rescue.
2.2. Immediate after 15 July coup attempt started at nearly 9:00 p.m., Ankara Chief Public Prosecutor’s Office issued detention warrants without having a jurisdiction and also getting a prosecution permission from the HCJP about 2745 judges and prosecutors at early hours of next day in violation of the § 9 of Article 159 of the Constitution and the article 88 of the Judges and Prosecutors Code no.2802, deeming the coup attempt ‘in the act of a crime’. Afterwards, the second department of the Council suspended these judges and prosecutors.
It is a well-known fact that thousands of judges and prosecutors were dismissed by the HCJP the day after the coup, based on lists which had been prepared by the members of YBP. Because, there were no prosecutions launched into those judges and prosecutors over the charge of having a link to the terrorist organization or abolishing the constitutional order. If that’s so, then how can it be possible to determine almost 3000 judges and prosecutors in only a few hours at the coup night that they involved in the coup attempt or having a link to the terrorist organization? Even only this fact is sufficient to prove that the blacklists of the opponent members of the judiciary prepared by the members of YBP was automatically turned into the detention lists by the public prosecutors’ office.
The fact that the name of public prosecutor Ahmet Biçer died on 23 May 2016 or the names of some retired judges and prosecutors or the names of some of the duty places where the judges and prosecutors served two years ago were included in the suspension list is sufficient to disclose the reality that those lists were prepared in advance. Likewise, Mehmet Yılmaz, the vice chairman of HCJP, declared on 19 July 2016 that 2740 judges and prosecutors were not determined suddenly but they were working on it for two years. Furthermore, in an interview he made with Elif Çakır, journalist in Karar newspaper, on 21 September 2016, he said “we had suspended 2740 judges and prosecutors on the wake of the 15 July coup attempt. However, that list was not prepared in only one night but we were working on it for three years”(1). Yılmaz confessed the fact that thousands of judges and prosecutors were dismissed by the HCJP the day after the coup, based on blacklists which had been prepared beforehand. Moreover, the monitoring committe of the Parliamentary Assembly of the Council of the Europe (PACE) pointed out this issue in its report published on 8 March 2017 as the following: “It is a well-known fact that thousands of judges and prosecutors were dismissed by the HCJP the day after the coup, based on lists which had been prepared in advance. These collective dismissals have had an impact on the functioning of the judiciary and its independence”(2).
2.3. According to the § 9 of Article 159 of of the Constitution, it is provided that any criminal investigation or prosecution can not be launched into the judges and prosecutors or any disciplinary penalties can be imposed against them by Ankara Chief Public Prosecutor’s Office or the Inspection Council of HCJP unless the request of concerned department of HCJP or the approval of the chairman of the Council remain. Otherwise, the prosecutors’ office will become deemed the § 9 of Article 159 of the constitution is null. As to be seen, without launching a criminal investigation or prosecution against judges and prosecutors, issuing a detention warrant about them is obviously contrary to the provisions of the Constitution. Furthermore, in the article 88 of the Judges and the Prosecutors Code no.2802, it is provided that “ except the cases where to be caught red-handed, the judges and prosecutors can not be directly caught, searched, detained or arrested.” Due to the fact that it is impossible to display a will for 2745 judges and prosecutors at the same time to commit a crime within the jurisdiction of the Assize Court, the detention warrants issued by Ankara Chief Public Prosecutor’s Office are also contrary to the Constitution, law or the Rules of Procedure from this point of view. Likewise, in his statement, which he made on 28 December 2016, the vice president of HCJP Mehmet Yılmaz told Sevilay Yılman, a journalist of Habertürk Daily: “The judgement of the judges and prosecutors will be possibly made only on the accusation of having a membership in armed terrorist organization, because there has been nobody whose involvement in the coup attempt is definetely proved up to now! We haven’t obtained any evidence yet” (3). In this way, he became confessed the fact that the condition provided in the code no.2802 where to be grounds to accuse the judges and prosecutors that they have committed a crime within the jurisdiction of the assize court and they are caught red-handed does not come true.
2.4. All the above-mentioned facts point out very well that the government had looked for an excuse just like a coup attempt to impose all these arbitrary arrests and the other disciplinary penalties. If in excess of 4000 judges and prosecutors (as of today when the dismissed members of the Court of Account and the military judges are included, the total number reaches 4695) have committed the alleged crime directed towards themselves, why hasn’t any disciplinary proceeding been applied against them and the wake of 15 July coup night was waited for? As it is impossible to obtain evidence without launching a criminal investigation against them in line with the legal procedures provided by the § 9 of Article 159 of the Constitution, what evidences might have been obtained in only a few hours up to the midday of 16 july so that the detention warrants were issued about in excess of 4000 judges and prosecutors, arrested and then dismissed from the post of judge on grounds of having a link to terrorist organisation. Or, did the specific facts or concrete evidences about the determined judges and prosecutors arise in only one day? This fact obviously shows that all of the unlawful disciplinary penalties just like detentions, arrests or dismissals were imposed completely arbitrarily.
2.5.Upon the detention of the judges and prosecutors in a headlong manner contrary to the Constitution, law and the Rule of Procedure immediate after 15 July coup attempt, Turkey director at Human Rights Watch, Emma Sinclair said that “jailing judges without even the pretence of due process will cause profound damage to Turkey’s justice system for years to come. Bypassing the rule of law is no way to protect it”(4). Furthermore, the monitoring Committe of the Parliamentary Assembly of the Council of the Europe (PACE) stated in its report published on 8 March 2017 that judges represent a special category of public servants, whose independence is guaranteed at the constitutional and international levels. Therefore, any dismissals within the judiciary or the regulatory bodies of the judiciary such as the HCJP, for example, should be subjected to particularly exacting scrutiny, even in times of a serious public emergency Otherwise, dismissals in judiciary may create a ‘chilling effect’ within the judiciary, making other judges reluctant to reverse measures declared under the emergency decree laws out of fear of becoming subjects of such measures themselves (5).
2.6. Under state of emergency, the government preferred to use the method of ‘achieving evidences following the accused person is arrested’ which is widely used in times of dictorial regimes instead of one of the most important and fundemental principles of Criminal law which is ‘achieving the accused person in a way of following the evidences’. The judges and prosecutors, detained and arrested based on the blacklists despite there were no concrete evidences, were compelled to confess the crime that they did not commit. Within this context, thousands of the arrested judges and prosecutors have been unduely subjected to torture and ill-treatment (in a way of being held in solitary confinement). In his statement, Mehmet Yılmaz said: “No worries. The HCJP will not return anyone who avails themselves of the Effective Repentance Law to their duty again. Our board is determined on this issue.” And he added: “ I made that statement to encourage confessions and it was vey succesful. There were no confessions at that time, but after I issued the statement, many were obtained”(6). However, they did not find the confessions satisfactory which were obtained playing a trick in a way of saying that they would discuss keeping suspended judges and prosecutors in their jobs whose confessions were helpful and important, but before all else, the confessors would be absolved from being punished and avail of the effective repantance so that almost 700 judges and prosecutors had been held in solitary confinement contrary to the Act of Execution of Penalties and Security Measures no. 5275. As of today, these judges and prosecutors have been being compelled to confess the crime they did not commit in the prison cells under solitary confinement. However, Juan Mendez, the Human Rights Council’s Special Rapporteur on torture proposed to the committee at the General Assembly of the United Nations a worldwide ban on the practice of solitary confinement saying that it was somewhat of a torture (7).
3. THE MEASURE OF ARREST HAS BEEN TURNED INTO THE IMPOSEMENT OF A PENALTY IN A WAY OF NOT FILING LAWSUITS AGAINST THE JUDGES AND PROSECUTORS HELD UNDER ARREST FOR 8 MONTHS
3.1. While the rate of the dismissals of the military officials on charge of attempting a coup is 12 percent, the highest rate with a 25 percent belongs to judiciary. Although the military officials, allegedly involved in he coup attempt, have not been arrested, even not launched an investigation against them yet, all of the suspended judges and prosecutors were detained and the majority of them were arrested. Furthermore, although the identities of the coup attempters have not been determined yet, the detention warrants were issued about the judges and prosecutors all at once. These practices cause to put into question that the coup d´état was attempted by the armed military forces or else by the judges and prosecutors who have nothing in their hands rather than the law.
3.2. The judges and prosecutors who have been arrested before all the public servants in a big hury, this time, have been left in a desperate straits owing to not prepared indictments about them. Although, the military and the other security officials or the other categories of the public servants have been filed lawsuits against and the hearings have also been being held, the trial of the judges and prosecutors somehow hasn’t started yet. For example, the arrested public prosecutor Seyfettin Yiğit was compelled to commit suicide because he could not put up with the persecution he was subjected in the prison cell even he did not see the indictment that should become prepared at that time and also judge Mehmet Tosun was died in hospital because of his illness worsening during the police detention following his dismissal where he was treated brutually and caused a lot of trauma of him.
3.3. It is questionable and as of serious concern that even only one lawsuit hasn’t been filed against any member of the judiciary. Further, the decisions on detention frequently lack proper reasoning based on specific facts, evidence and grounds to justify the deprivation of their liberty, as required by law. Accordingly, it is understood that the above-mentioned statement of the vice president of HCJP Mehmet Yılmaz discloses the fact that they delay bringing suitcases against the members of the judiciary with the hope of gathering evidence in time because they could not be able to obtain any evidence up to now other than the labeling lists prepared by their supporter judges.
3.4. According to the principle of natural judge, a dispute can be resolved (tried) only by the courts which have a jurisdiction at the time when that dispute arises. Accordingly, it is prohibited of the resolution of a dispute by the tribunals, established under a law passed after that dispute arises that’s to say there is no chance of establishing extraordinary tribunals instead of legally designated courts (8). Further, the article 37 of the Constitution titled ‘Principle of natural judge’ provides: “No one may be tried by any judicial authority other than the legally designated court. Extraordinary tribunals with jurisdiction that would in effect remove a person from the jurisdiction of his legally designated court shall not be established.” Accordingly, the courts which have a jurisdiction to try dismissed and arrested judges and proseutors following the 15 July coup attempt shall be determined in line with the concerned legal provisions of the code no. 2802 in effect in time of 15 july coup attempt. However, by the emergency decree law no.680, adopted nearly 6 months later after 15 july coup attempt, in cases of conducting a criminal investigation or prosecution against the judges and prosecutors, the chief public prosecutor’s office or the assize court which are located in the region where the persons concerned serve shall have jurisdiction over the case. Due to the this provision, regulated contrary to the principle of natural judge and the constitution, the legal confusion on the issue that which tribunals have jurisdiction to try thousands of judges and prosecutors including many first category judges and prosecutors arises as another reason of delaying to file lawsuits against the members of the judiciary.
3.5. Moreover, the judges and the prosecutors have been held under arrest by means of ‘the criminal judge of peace’ operating as a closed circuit which means objections to their decisions are not reviewed by a higher judicial body but by their peers i.e. by another single-judge institution. Accordingly, if a lawsuit is brought against the judges and prosecutors in competent judicial bodies other than the criminal judges of peace, somewhat of a beating tool of the government, the chance of making a decision ordering their release will be high so that the judges and prosecutors have been kept busy without filing suits against them.
3.6. As the politics of the ruling government oftenly come face to face with the members of the judiciary due to their many unlawful actions that constitute an offense, they desire to get revenge they have raised against the members of the judiciary by hand of new recruits who pledged alligiance completely to the executives so that the arrest sanction has turned into the tool of penalty imposement.
4. THERE IS NO EFFECTIVE REMEDY AGAINST THE DECISIONS OF THE CRIMINAL JUDGES OF PEACE
4.1. Contrary to the fundemental principle of the criminal procedure law which is “a decision of a judicial body shall be reviewed only by a higher one”, it is regulated in concerned law as objections to the decisions of the criminal judge of peace shall not be reviewed by a higher judicial body but by their peers i.e. by another single-judge institution. Although it is alleged that the criminal judges of peace are established to ensure the freedoms, never mind about the decisions of these institutions that rule to protect the freedoms, there are lots of decisions which lay down that these crimial judges of peace have been being used as a tool to silence and intimidate the opponents. For example, following the 17/25 December corruption/bribery investigations, the television organizations and many conglomerates which are known as sympathizers of Gülen movement were shut down, their assets were confiscated and the executives and the employees were arrested. In addition, the executives of Cumhuriyet Daily who published the photos of the MIT trucks dispatching military supplies to ISIL or the co-chairs, deputies and mayors of the Kurdish Workers’ Party (HDP) exhibiting an opposition stance in a way of saying Erdoğan “we won’t let you become a president” were also arrested based on the decisions of the criminal judges of peace, further the municipalities of HDP were seized being appointed trustees by the court ruling of these criminal judges of peace. Levent Gök, the deputy chairman of one of CHP groups in Grand National Assembly, told in his statement he made on 27 October 2015, that the criminal judges of peace were established by the ruling party to settle outstanding accounts with the opponents and it was impossible to call these institutions as a court but these were man-at-arms of the ruling party. The judge İslam Çiçek who rendered a decision ordering the release of Reza Zarrab and the sons of the Ministers of Erdoğan cabinet shared a message in his facebook account in which he declared his love to president Erdoğan, representing a remarkable example to increasing divergence from the rule of law and the independence of the judiciary.
4.2. Againts the decisions of these incompetent criminal judges of peace, the only effective and available domestic remedy seems the individual application to the Constitutional Court. However, despite thousansd of the individual applications, submitted to the Court should have been examined urgently up to now, the Constitutional Court under the strong political pressure of the executives have not decided any of the applications yet. In fact, on 4 August 2016, the Constitutional Court of Turkey decided, in a judgment, to dismiss two of its own members for their alleged links to Gülen Movement. This judgment was based on the power (given to the Plenary of the Constitutional Court by Decree Law no. 667, Article 3 (1)) to dismiss the Constitutional Court judges who are considered to be a member of, or have relation, connection or contact with terrorist organizations or structure/entities (9). It can be easily understood that in such a context the Constitutional Court will not in a position to reach a decision impartially for the dismissed 4000 judges and prosecutors. However, in its Mercan v. Turkey decision, the ECtHR noted that the domestic remedies are effective referring the decision of the Constitution Court in which the Court ordered the release of Can Dündar and Erdem Gül (10). However, the ECtHR omitted two important points in its decision which are as the following: Firstly, there is a huge different between the judiciary existed before 15 july coup attempt and released Can Dündar and Erdem Gül and the judiciary after 15 July whose quarter of the members have been purged and the remainders, on the other hand, are frightened and also reluctant to reverse unlawful measures declared under the emergency decree laws out of fear of becoming subjects of such measures themselves. Secondly, Erdal Tercan and Alparslan Altan, voting in favor of the release of Can Dündar&Erdem Gül and known having leftist tendency and not to have a link to Mr Gülen were dismissed over charge of having membership in criminal organisation.
4.3. The United Nations Mechanism for International Criminal Tribunals ordered the government of the Republic of Turkey to cease all legal proceedings against judge Aydın Sefa Akay, a member of the Appeals Chamber Bench in the Ngirabatware case and take all necessary measures to ensure his release from detention. The United Nation Secretary- General has formally asserted the diplomatic immunity of him to Turkish authorities and his detention has violated the judge guarantees and the indepenence of the judiciary. As seen, the domestic remedies are so effective and available (!) that judge Akay who has a diplomatic immunity and ordered to be released no later than 14 February 2017 hasn’t been released yet although the order is binding on Turkey under United Nations Security Council resolution 1996, which requires that all states comply with orders issued by the mechanism (11).
In summary, the judges and prosecutors targeted by the ruling government after 17/25 December corruption/bribery investigations have been subjected to a hurtful cutting up of Erdoğan thanks to 15 July coup attempt called by him as ‘a gift from God’. The quarter of the whole judiciary were labeled as a terrorist and their assets were seized as never been experienced before in any public institutions before, then detained and arrested. Despite there has been nobody whose involvement in the coup attempt is definetely proved up to now, the judges and prosecutors have become a devastating affected category in public servants that has suffered irreversible damage the most heavily from the outcomes of the coup attempt. Without any indictment, they have been held in prison cells even in solitary cofinement for months being deprived of many fundemental rights even the persons convicted of murder, sexual abuse or plundering were granted. Unfortunately, the judges and prosecutors whose applications lodged with the ECtHR have been rejected by the Court for the non-exhaustion of domestic remedies have been left to beg for a justice from their executioners. We hope that the ECtHR will be no more late in delivering justice to thousands of judges and prosecutors left to decay in prison cells in a way of turning back its decision that orders them to make use of the domestic remedies.
8.Kemal Gözler, http://www.anayasa.gen.tr/tabii-hakim.htm