LATEST EXAMPLE CASTING THAT THE TURKISH JUDICIARY HAS LOST ITS INDEPENDENCE
I would like to draw your attention to the recent retaliation in Turkey regarding the judicial independence.
The judges of Istanbul 25th Heavy Penal Court (Aggravated Felony Court) and the trial prosecutor were suspended on 3 April 2017 due to their ruling for release of 21 defendant journalists after the hearing on 31 March 2017.
The suspension of the three judges and prosecutor, like the thousands of previous ones, showed that the Turkish courts are not independent of outside pressures especially coming from the goverment side.
After the five-day hearing, the trial prosecutor requested eight defendants to be released and the delegation of the Istanbul 25th Heavy Penal Court ruled for release of 21 out of 29 defendant journalists who had been under pre-trial detention for eight months over the charges of their alleged links to the so-called Gülenist Terorist Organization (FETO/PDY). However, not only 21 journalists were re-arrested the same night, but also the three judges and the prosecutor were temporarily suspended from job on 3 April 2017 as a result of social media lynch campaign towards them.
The incidents that paved the way to the suspension of the judges is explained below:
Following the court’s ruling for release of 21 defendant journalists on 31 March 2017, one of Erdoğan’s hitmen Cem Küçük threatened the judges through his Twitter account, @cemkucuk55. Some of his twits are as follows:
“10- If those traitors are not jailed again, some will pay a heavy price for it. I am saying this knowingly. Things will get crazy (7:39 pm – 31 March 2017) (https://mobile.twitter.com/undefined/status/847850960038883328).
13- Justice Minister Bekir Bozdağ should immediately assembly the High Council of Judges and Prosecutors, and take legal actions against these judges. This is the Nation’s demand (7:50 pm – 31 Mar 2017) (https://mobile.twitter.com/undefined/status/847853695790350336).
14- Judges and prosecutors who release known FETO suspects will be permanently discharged. This is the State’s final decision. Everybody shall learn that (8:08 pm – 31 March 2017) (https://mobile.twitter.com/undefined/status/847858216050597892).
15- The courts and state belong to the nation. No suspect can be released against the nation’s will. Nobody should work on the state’s and the People’s patience (08:09 pm – 31 March 2017) (https://mobile.twitter.com/undefined/status/847858465657806848).”
A few hours later, he shared new twits as follows: “The Justice Minister and the HCJP (High Council of Judges and Prosecutors) will take action. Those traitors will not be released, God willing! (31/03/2017, 10:40 pm) (https://mobile.twitter.com/undefined/status/847896480128139264).
The traitor FETO supporters will not see any sunshine. They will decay in the jail. Be relieved! The patriot judges and prosecutors are doing what is to do (31/03/2017, 10:47 pm)” (https://mobile.twitter.com/undefined/status/847898273469919234).
Another pro-government journalist Ersoy Dede responded Cem Küçük’s twits via his account and wrote that “[t]his is not enough @cemkkucuk55… All judges who joined the release ruling will be arrested without exception ( @ersoydede 31/03/2017, 10:46 pm) (https://mobile.twitter.com/undefined/status/847897878941106177).”
Another journalist linked to the government Fatih Tezcan shared a message on his Twitter account, @fatihtezcan and wrote [a] ll judges of the court that released the bitch who had made a live-TV show with a hanging rope and told that Tayyip Erdoğan would be bummed off shall be jailed over FETÖ links (31/03/2017, 6:57 pm) (https://mobile.twitter.com/undefined/status/847840398492016640).”
Ömer Turan, another hitman of Erdoğan, put following message on Twitter: “HCJP should immediately hold a session tonight and expell all judges who released FETO suspects. Then, those judges should be jailed (@omerturantv 31 March 2017- 7:38 pm) (https://mobile.twitter.com/undefined/status/847850679301537793). ”
The same night, the Undersecretary of the Justice Ministry, Kenan İpek, also a member of the 1st Chamber of the HCJP shared following message via his personal account: ” The fight that the Turkish judiciary and the HCJP have been carried out against the FETO/PDY armed terrorist organization will be maintained in the same decisive and absolute manner as it was done before (1/04/2017, 01:17 am) (https://mobile.twitter.com/kenanipek53/status/847935807323242501).”
As a result of the social media clamor noted above, 21 released journalists were not freed and 13 of them were taken under custody over new charges the same night . They were charged with attempting to replace the constitutional order and overthrow the Republic of Turkey. The Public Prosecutor’s Office of Istanbul objected to the release of the remaining eight defendants and they were not freed but kept in jail until Istanbul 26th Heavy Penal Court reversed the defendants’ release. Therefore, all defendant journalists who had been previously released were either jailed again or taken under custody the same night.
On 3 April 2017, the three judges who ruled for release of 21 journalists and the trial prosecutor were all temporarily suspended by the HCJP. The only reason for their suspension was the above-mentioned release order that was not implemented. Suspending judges and launching legal proceedings against them because of their judicial rulings demonstrate a clear evidence that the independence of courts in Turkey has been abolished. Judges or prosecutors who witness such reactions, or who read the twits shared by the undersecretary of the Justice Ministry cannot be expected to perform their judicial work independently and without fear. Professor Yaman Akdeniz, lawyer and a humanright expert, on his twitter account, shared that [i]t is no longer possible that any journalist or any ordinary man shall be fairly and impartially tried over so – called FETÖ/PDY cases(@cyberrights, 3/04/2017, 9:19 pm) (https://mobile.twitter.com/undefined/status/848963056545800197).”
Although numerous examples have been witnessed in recent years(see the Declaration of Venice Comission dated 20 June 2015), this case is particularly significant since it is also related to the freedom of media.
According to Toygun Atilla’s report from Hürriyet Daily dated 5 April 2017, Deputy president of the HCJP, Mehmet Yılmaz, explained the reasons for suspending the three judges and a prosecutor. In his interview, Mr. Yılmaz said they had suspended the judges and launched an investigation because of the claims that the release of the 21 defendants had not conformed to the law and content of the file. He also admitted that they had taken such an action because of the outcry among the public, and because of some accusations showing that the judges had wilfully released the 21 defendants under other motivations except law.
When he was asked if those suspensions influence the other judges and prosecutors handling with FETO cases, “[o]f course, there will be some negative impacts but…”, he responded. Mr. Yılmaz also put this interview on his Twitter account (@mehmetyilmaz073, 5/04/2017, 06:13 pm) (https://mobile.twitter.com/undefined/status/849459904083570688).
As above-mentioned events cast, judicial rulings (the release order in this case) are arbitrarily reviewed by a non-judicial organ (HSYK/HCJP) and found unlawful and illegitimate. As a result of non-judicial reviews and reactions, judges and prosecutors may be suspended, dismmised, or subjected to legal proceedings. However, judicial decisions are only subject to judicial reviews and reversed by other judicial organs pre-determined by law. In sum, it is clear that the independence of judiciary is not independent as long as judicial decisions are subject to de facto governmental review and/or if judges are dismissed or suspended due to their judicial capacity.
Suspension of judges because of so-called outcry among public that their ruling may have created is a clear example proving that judges are vulnerable and open to external influences. Instead, protection of judges against external pressures is considered as one of the basic elements of an independent judiciary (Findlay v. The United Kingdom, para. 73). As a conclusion, this case is one of the significant evidences casting that the first instance and appeal courts performing under the shadow of the HCJP have lost their independence.
A purged judge
