The independence, impartiality and effectiveness of the Turkish judiciary have been in a dramatic decline especially since the coup attempt in July 2016 and the following state of emergency regime and thereafter. There seems to be no internal dynamic by which the Turkish judiciary can rescue itself from the impasse in which it has slipped. The non-independence and non-impartiality of the Turkish judiciary in this process have been extensively covered elsewhere.[1] Much longed intervention from the European Court of Human Rights (ECtHR) to monitor the human rights violations in Turkey has not come about even after more than two years since the coup attempt due to the ECtHR insistence of viewing the Turkish judicial system as an effective remedy. The current Turkish judicial and legal system may however well be considered as an ineffective remedy from a number of dimensions (lower courts, law enforcement, appeal system etc.). This paper mainly seeks to prove why the Turkish Constitutional Court ought not to be considered an effective remedy under the jurisprudence of the ECtHR.

The Constitutional Court has not viewed itself as authorised to review the emergency decree laws published during the state of emergency.

The Constitutional Court decided in October 2016 that it has no competence to examine unconstitutionality of the emergency decree laws in clear contradiction with its earlier precedence by relying on the wording of Article 148 of the Constitution.[2] Article 148 of the Constitution stipulates that:

“the Constitutional Court shall examine the constitutionality in respect of both form and substance of laws, decrees having the force of law, and the Rules of Procedure of the Grand National Assembly of Turkey and decide on individual applications. Constitutional Amendments shall be examined and verified only with regard to their form. However, decrees having the force of law issued during a state of emergency, martial law or in time of war shall not be brought before the Constitutional Court alleging their unconstitutionality as to form or substance”.

In its previous jurisprudence, the Turkish Constitutional Court had actually given a liberal interpretation to this article. Thus, the Court had declared itself competent to review the constitutionality of the emergency decree laws, but only to the extent that they went beyond the scope of the state of emergency ratione temporis and ratione loci.[3] In September 2016, the main opposition party CHP challenged Emergency Decree Law No. 667 before the Constitutional Court inter alia because this Emergency Decree Law introduced permanent (as opposed to temporary) measures. However, the Constitutional Court rejected the appeal and denied a review of the decree law in abstracto in October 2016.

What this would mean that the constitutional order is reduced to a single provision (Article 148) which gave way to the emergency regime and its incontestability and it is left to the arbitrariness of the executive controlled by the non-accountable President.[4]

The ruling party that is dominated parliament passed laws which made the emergency decree laws permanent laws before the lifting of the state of emergency.[5] This process of transforming the emergency decree laws into permanent Turkish legislation was thus completed in March 2018 before the ending of the state of emergency in July 2018. There is no evidence as yet though that the Constitutional Court will exercise any unconstitutionality check over these transforming laws in abstracto, which were once emergency decree laws.

The Constitutional Court has not delivered any judgment in favour of the applicants which could evidence its effectiveness (except Altan and Alpay case).

The Constitutional Court has been ineffective in addressing the gross violations of individual rights and freedoms which have taken place in Turkey since the coup attempt in July 2016. After the failed coup and the declaration of the state of emergency, many public officials who had been dismissed by emergency decree laws made applications for annulment of those dismissals to administrative and judicial bodies, the Constitutional Court, and the ECtHR.[6] In over 300 cases, the administrative courts rejected these applications, arguing lack of jurisdiction due to the nature of the emergency decree law, as did the Constitutional Court, and the Council of State.[7]

To date, the only evidence that the Constitutional Court can operate as an effective remedy is the cases involving journalists Mehmet Altan and Sahin Alpay. The Constitutional Court held on 11 January 2018 that the freedom of expression and liberty of the two journalists Mehmet Altan and Şahin Alpay had been violated. Upon this decision, Deputy Prime Minister and Government Spokesperson Bekir Bozdağ stated on his twitter account that the Constitutional Court had overstepped its boundary drawn up by the Constitution and legislation. Under pressure from the government, Alpay and Altan decisions were not implemented by Istanbul courts with almost the same reasoning used by the Government Spokesperson.[8] Despite the dictum that the Constitutional Court’s decisions are final and binding on the legislative, executive and judicial organs, the courts of first instance have not implemented the decision.

Upon another application by Journalist Şahin Alpay, the Constitutional Court delivered another decision on 16 March 2018 where it found Alpay’s rights were violated under the ECHR.[9] By contrast, the Istanbul court followed the ruling this time and issued Alpay’s conditional release. Surprisingly, nothing was heard from the executive on this occasion.

This development has been regarded by some as the government’s tactical move to avoid a possible ECtHR ruling on related pending cases to the effect that the Constitution Court is not an effective remedy.[10] Turkish human rights lawyer Kerem Altıparmak tweeted that the Turkish government’s move was intended to send a message to the ECtHR that the Constitutional Court is a viable domestic remedy.[11]

The ECtHR did soon after find breaches of Altan’s and Alpay’s rights specifically because of the failure of the lower courts to follow the Constitutional Court’s decision.[12] The European Court observed, in particular, that the reasons given by the Istanbul 13th Assize Court in rejecting the application for their release, following a ‘final’ and ‘binding’ judgment delivered by the supreme constitutional judicial authority, could not be regarded as satisfying the requirements of Article 5(1) of the ECHR.

Apart from these two cases which were decided on the same occasion, the Constitutional Court has been either inactive or delivered negative decisions in tens of thousands of individual applications involving post-coup attempt cases. Even in the individual application made by one of its former members, Alpaslan Altan, the Plenary Session of the Constitution Court found on 11 January 2018 (App. No. 2016/15586) his application as inadmissible.[13] The Constitutional Court refused Altan’s individual application on the ground that the alleged unlawfulness of his detention was manifestly ill-founded.

The Constitutional Court dismissed two of its members for alleged Gulenist links

In the aftermath of the attempted coup, on 4 August 2016, the Constitutional Court decided to dismiss two of its own members for their alleged Gulenist links.[14] This judgment was based on the power conferred on the Plenary of the Constitutional Court by Article 3(1) of Emergency Decree Law No. 667 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”. The Constitutional Court stated in particular (see para 84 et seq) as follows:

“Establishing a link between members of the Constitutional Court and the terrorist organization […] was not necessarily sought for the application of the measure; it was considered sufficient to establish their link with ‘structures’, ‘organizations’ or ‘groups’ […]. The link in question does not necessarily have to be in the form of ‘membership of’ or ‘affiliation with’ a structure, organization or group; it is sufficient for it to be in the form of ‘connection’ or ‘contact’ in order for the measure of dismissal from profession to be applied. Lastly, establishing the evidentiary link between the members and the structures, organizations or groups […] is not sought in the Article [of Decree Law no. 667]. ‘Assessment’ of such link by the Plenary Session of the Constitutional Court is deemed sufficient. The assessment in question means a ‘conviction’ formed by the absolute majority of the Plenary Session. Undoubtedly, this conviction is solely an assessment on whether the person concerned is suitable to remain in the profession irrespective of whether there is criminal liability. Article 3 of the Decree Law prescribes no requirement to rely on a certain kind of evidence in order to reach this conviction. On the basis of which elements this conviction will be formed is a matter left to the discretion of the absolute majority of the Plenary Session. …”

As pointed out by Venice Commission[15], for the Turkish Constitutional Court, a decision to dismiss a judge on the basis of the extraordinary measures ordered by the emergency decree law does not require any particular evidence to be described and analysed in the judgment (para 136). In fact, the above-cited judgment does not refer to any evidence against the two judges concerned. To decide on the dismissal, it is sufficient for the majority of the Constitutional Court to be subjectively persuaded that a link between a member of the Constitutional Court and the Gulenist group exists.

On the existence of such a link, the Constitutional Court further relied on the information from social circles and the joint opinion of the members of the Constitutional Court which has evolved in due course (para 98). It must be noted that the Constitutional Court’s dismissal is not based on any misconduct or incompetence or any concrete evidence in relation to any criminal activity on the part of the dismissed members.

Venice Commission further notes an obvious paradox relating to the dismissal of its own members in connection with the constitutional and judicial review of the emergency measures. By dismissing two of its members on 4 August 2016, the Constitutional Court in essence confirmed the validity of Decree Law No. 667 which served as a legal basis for that very decision. Besides, other supreme courts and the Judicial Council (HSYK) dismissed thousands of judges using the extraordinary powers given by the same Emergency Decree Law No. 667. Venice Commission thus concludes that challenging the legitimacy of the process of mass dismissals of judges and prosecutors before those courts will have little chance of success, as the general legitimacy of the scheme of dismissals de facto cannot be put into question (para 186).

Further, the powers of the Constitutional Court are limited to those attributed competences granted by the Constitution (Article 148). The Constitutional Court is not a general court of law and thus not authorised to deal with the criminal prosecutions. As it is not a general court of law, it cannot decide whether or not a group is a terror organisation. Besides, the Constitutional Court delivered a judgment when deciding the dismissals without conducting any adjudicative criminal proceeding and without conforming with any sine qua non judicial guarantees such as adversarial proceedings, equality of arms etc. Without the recognition of the organisation as terror organisation by a res judicata decision of the criminal courts, the Plenary Session of the Constitutional Court (all the members of the Court) used the expression of “Fethullahist Terror Organisation/Parallel State Structure” (FETO/PDY) several dozen times without the use of the adjective “alleged”, as if the existence of such a “terror organisation was a given fact.

The first final and binding decision of criminal courts in relation to the existence of such a “terror organisation” is arguably the decision of the Assembly of Criminal Chambers of the Court of Cassation dated 26 September 2017[16]. Until the date of this decision, the Constitutional Court could not characterise a group or an organisation as a terror organisation as if it existed. Nor could it base its decision to dismiss two of its members on the basis of the link, contact or affiliation to such a group. One could argue that all the members of the Constitutional Court have displayed their bias and thus impartiality in relation to the applications involving the alleged Gulenists by joining the Constitutional Court’s dismissal decision on the ground of its stated legal reasoning.

The members continue to be exposed to threat of dismissal and criminal prosecution

Following the declaration of the state of emergency in the aftermath of the coup attempt in July 2016, Article 3 (1) of the Emergency Decree Law No. 667[17] provided the power of dismissal of judges including the Constitutional Court judges “who are considered to be a member of, or have relation, connection or contact with terrorist organizations or structure/entities”. Upon the end of the state of emergency, Turkey ratified an anti-terrorism law on 25 July 2018 which basically ensured that certain state of emergency powers continue.[18] This law covers a range of powers that previously only existed under the state of emergency. Article 26.A of the law in particular allows authorities to dismiss judges and all other public officials for the next three years if they are:

“found to have been members of or acted in union with or been in contact with terrorist organizations or structures, entities or groups that the National Security Council has decided are engaged in activities against national security.”

This discretionary power allows the judicial authorities to dismiss judges including the members of the Constitutional Court on the assumed connection or contact with terrorist organisations and structures or entities or groups which are considered as national threat. This very loose and arbitrary grounds of dismissal constitute a threat to the security of tenure for judges including the member of the Constitutional Court.

It has been already witnessed that the plenary session of the Constitutional Court had dismissed two of its members on similar arbitrary grounds. Thus, there is no guarantee that any individual member of the Constitutional Court is immune and guaranteed from such an abrupt end of tenure.

Further, under Articles 159/9 of the Constitution and Article 88/1 of the Law No. 2802, judges and prosecutors may only be arrested if there are circumstances which give rise to strong suspicion that they have committed a crime and they have been caught in flagrante delicto. Article 88/1 of the Law on Judges and Prosecutors No. 2802 states as follows: “Except for offences caught red handed (in flagrante delicto) which are subject to the jurisdiction of assize criminal courts, judges and prosecutors may not be arrested, neither their bodies nor their houses may be searched, nor they may be interrogated, for claims of having committed a crime.” Despite these guarantees, thousands of judges and prosecutors have been detained and arrested in the post-coup attempt prosecutions, despite the absence of flagrante delicto on the part of the members of the judiciary.[19]

Similarly, the two members of the Constitutional Court have been detained and arrested under the same alleged membership of a terror organisation despite the absence of procedural grounds for such investigatory measures. It may also be the case that any judge including members of the Constitutional Court are under the threat of a possible criminal prosecution on accusation of the membership of a terror organisation. There is no guarantee in principle under the current politicised operation of the judiciary that the members of the Constitutional Court are immune from such a prosecution. Therefore, the investigatory measures such as arrest and detention which are used in violation of Article 88/1 of the Law No. 2802 as well as the constitutional principles protecting the independence of the judiciary constitute sword of Damocles hanging above the members of the Constitutional Court.

Institutional independence of the Constitutional Court cannot be guaranteed

The 2017 Turkish constitutional referendum[20] made significant changes especially in relation to the procedure for the recruitment of the members of the Constitutional Court. The amended Article 146 now provides that the members of the Constitutional Court will be designated as follows: Five (5) members will be selected by the President from among the candidates designated by the Court of Cassation and Council of State. Three (3) members of the Constitutional Court will be selected by the Parliament which would be normally dominated by the political party chaired by the President. Three (3) members will be selected by the President again from among the candidates designated by the Board of Higher Education (YOK) comprising of members who are selected and appointed by the President. The remaining four (4) members will be directly appointed by the President from among certain listed professions by the Constitution.

Under the powers now held by President Erdogan since 2017, he has the ability to appoint 12 of the 15 Constitutional Court judges and so one could argue that the future independence of the Constitutional Court cannot be guaranteed. Not only in Turkey but also in any country even in those which have an established and well-functioning practice of the rule of law, it would be highly implausible to expect the Constitutional Court to effectively and impartially revise the constitutionality of the laws adapted by the Parliament dominated by the President’s party. The Constitutional Court with this composition cannot also be perceived to be impartial and independent when prosecuting the President in its capacity as the Supreme Court.

Conclusion

On October 2018, the European Court of Justice (ECJ) ordered Poland to “immediately suspend” the application of its national law which lowers the retirement age of Supreme Court judges.[21] The issue of debate here relates to the lowering of retirement age from to 65 followed by recruitment of further supreme court judges with a view by the Polish government to taking control of the judiciary. The Vice-President of the ECJ recalled that the judicial independence forms part of the essence of the fundamental right to a ‘fair trial’, which is of central importance as a guarantee for the protection of (EU) rights and a safeguard of the rule of law. She further observed that the infringement of a fundamental right such as the right to an independent court or tribunal is thus capable, because of the very nature of the infringed right, of giving rise in itself to serious and irreparable damage.

Whereas the interim decision delivered by the ECJ may have been given in the context of the European Union (EU) legal order, the significance and implications of the decision cannot be only limited to the EU jurisdictional sphere. There is, of course, some established division of labour between the jurisdiction of the ECJ and the ECtHR in human rights cases. However, it is also true that all the EU member states are also parties to the European Convention of Human Rights (ECHR) and their jurisdictions are part of the European human rights order. Therefore, one cannot escape from the general authority and implications of such a significant ruling which involves the issue of rule of law, the right to fair trial and independence of the judiciary.

The dramatic worsening of the independence, impartiality and effectiveness of the Turkish judiciary since the attempted coup in July 2016 speaks for volumes. Various bodies of the Council of Europe including Venice Commission, European Human Rights Commissioner and PACE have strongly criticised the destruction of the rule of law, fair trial and independence of the Turkish judiciary.[22] The reports of the organs of the Council of Europe are full of textbook examples of how such basic legal norms and institutions have been dismantled in Turkey. Seeking to entreat the Turkish Constitutional Court still as an effective remedy in view of many ‘chilling effects” over the Turkish judiciary and the Constitutional Court is an illusion from which the ECtHR must wake up in order to lead the way in some test cases.

[1] https://platformpj.org/wp-content/uploads/non-independence-1.pdf

[2] See http://www.hurriyetdailynews.com/turkish-constitutional-court-rejects-chps-appeal-to-annul-decree-laws-104889; for the Constitutional Court decisions, see 2016/166 E., 2016/159 K; 2016/167 E., 2016/160 K., 12.10.2016 T. RG: 04.11.2016 – 29878; for the Press Release of the Constitutional Court, see http://www.anayasa.gov.tr/icsayfalar/basin/kararlarailiskinbasinduyurulari/genelkurul/detay/21.html

[3] See Constitutional Court 10 January 1991, Registry No. 1990/25, Decision 1991/1; Constitutional Court 3 July 1991, Registry n° 1191/6, Decision No. 1991/20, see A.R Coban, “Comparing Constitutional Adjudication. A Summer School on Comparative Interpretation of European Constitutional Jurisprudence. 4th Edition – 2009. States of emergency and fundamental rights. Turkey. Fundamental Rights during States of emergency in Turkey”, p. 9.

[4] See https://platformpj.org/constitution-newly-emerged-authoritarian-regime-decree-laws-state-emergency/

[5] Five Emergence Decree Laws had been made permanent laws in the course of the state of emergency before and yet further 25 Emergency Decree Laws were also promulgated in March 2018 with a view to make them permanent law before the ending of the state of emergency. http://www.resmigazete.gov.tr/main.aspx?home=http://www.resmigazete.gov.tr/eskiler/2018/03/20180308m1.htm&main=http://www.resmigazete.gov.tr/eskiler/2018/03/20180308m1.htm

[6] K. Altiparmak, Is the State of Emergency Inquiry Commission, Established by Emergency Decree 685, an Effective Remedy? Human Rights Joint Platform (IHOP) (February 2017) p. 1 < http://www.ihop.org.tr/en/wp-content/uploads/2017/03/IS-THE-STATE-OF-EMERGENCY-INQUIRY-COMMISSION.pdf, >.

[7] https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=11829b68-66ce-42da-8943-1170da0db2a9, para. 40.

[8] http://www.hurriyetdailynews.com/osce-calls-on-turkey-to-release-two-arrested-journalists-over-high-court-ruling-125910

[9] https://m.bianet.org/english/law/195222-constitutional-court-rules-second-time-alpay-s-rights-violated

[10] https://www.g4media.ro/top-european-courts-life-kiss-to-turkeys-ill-judiciary.html

[11] https://www.turkishminute.com/2018/03/17/lawyer-altiparmak-alpay-decision-tactical-move-to-avoid-ecthr-rulings/

[12] See judgements in Altan v Turkey (application no. 13237/17) and Alpay v Turkey (application no. 16538/17).

[13] http://www.anayasa.gov.tr/icsayfalar/basin/kararlarailiskinbasinduyurulari/bireyselbasvuru/detay/152.html

[14] Case No. 2016/6 (Miscellaneous), Decision No. 2016/12, Date 4/8/2016;

http://www.kararlaryeni.anayasa.gov.tr/Karar/Content/717f7c20-b696-4379-84f6-dfb568f8844a?excludeGerekce=False&wordsOnly=False; see Olcay, T. (2017) “Firing Bench-mates: The Human Rights and Rule of Law Implications of the Turkish Constitutional Court’s Dismissal of Its Two Members”, European Constitutional Law Review, 13(3): 568-581.

[15] Venice Commission Turkey Opinion on the Provisions of the Emergency Decree Law No. 674 of 1 September 2016, Adopted by the Commission at its 112^th Plenary Session (Venice, 6-7 October 2017) https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2017)021-e

[16] Case No. 2017/16.MD-956; Decision No. 2017/370; Date. 26.09.2017; for the text of the decision, see https://www.memurlar.net/haber/712749/yargitay-ceza-genel-kurulu-nun-bylock-ve-feto-uyeligine-dair-kararinin-tam-metni.html

[17] http://www.resmigazete.gov.tr/eskiler/2016/07/20160723-8.htm

[18] Law No. 7145 of 25 July 2018 regarding amendments to some laws and decrees www.tbmm.gov.tr/kanunlar/k7145.html

[19] See https://platformpj.org/arrests-judges-prosecutors-turkey-violation-principle-flagrante-delicto/

[20] https://platformpj.org/wp-content/uploads/An-All-Powerful-President1.pdf

[21] https://www.bbc.co.uk/news/world-europe-45917830, 19 October 2018; also see Court of Justice of the European Union, PRESS RELEASE No 159/18 Luxembourg, 19 October 2018 Order of the Vice-President of the Court in Case C-619/18 R Commission v Poland; https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-10/cp180159en.pdf

[22] https://platformpj.org/wp-content/uploads/COUNCIL-OF-EUROPE%E2%80%99S-PERSPECTIVES-ON-THE-RULE-OF-LAW-AND-HUMAN-RIGHTS-IN-TURKEY-IN-THE-AFTERMATH-OF-15-JULY-2016-COUP-ATTEMPT.pdf

This Platform for Peace and Justice report provides a comprehensive summary of the lack of independence and impartiality of Turkey’s Criminal Peace Judgeships (CPJ). The CPJ was established in June 2014 with the exclusive power of determining pre-trial detention and release or continuation of said detention; to authorise searches, seizures, appointments of trustees, and disclaimer trials; and to examine objections against decisions given in these proceedings. Given the state of affairs in Turkey over recent years, with ever-increasing political tensions and human rights abuses, the independence and impartiality of the CPJ is necessary for a viable judicial system and fair trial. Analysis of this competence is particularly important as international courts like the European Court of Human Rights will only accept cases in which there is no viable domestic avenue. As this report shows with events, statement, facts and other material evidence, the CPJ do not meet the requirements of a ‘judge’ or a ‘court’ which are ‘independent, impartial and previously establishment by law’ vis a vis the European Convention on Human Rights or International Covenant on Political and Civil Rights.

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In the recently published World Justice Project 2017-2018 Rule of Law Index, Turkey’s scores continued to decline and the country dropped to the 101^st rank among 113 countries. Meanwhile, in the field of checks on government powers, Turkey has ranked as low as the 111^th among 113 countries.

How come did Turkey suddenly drift away from modern values and fall to the lowest ranks of the lists that are prepared based on universal values, while the same country until only a few years ago was attaining a significant acceleration in terms of the rule of law, democracy and fundamental rights, and raising its own bar higher and higher?

Indeed, in recent years, Turkey has been going through one of the greatest breaking points of its late history. In only 2005, Turkey was a country facing towards the West and conducting membership negotiations with the European Union.

Until the 2010s, the AKP –the ruling Justice and Development Party, who won the elections in 2002 and started to govern Turkey with promises to establish democracy, universal human rights, and free market economy and was using a rhetoric of dialogue and tolerance declaring that they are going to limit government power and strengthen the rule of law and civil society which prioritise individuals over the state– had taken many steps in this direction.

Day after day, the Turkish public had increased their support to the AKP as they had seen the steps taken on the way to modernisation and EU membership. Taken the wind of this public support to its back, the AKP partially amended the Turkish Constitution in 2010 under the motto “More Democracy, More Freedom!” A majority (58%) of Turkish voters said “Yes” to this amendment by running a campaign under the banner, “It’s Not Enough, But Yes!”

This constitutional amendment, which was interpreted as “a sign showing that Turkey is getting closer to European standards” was also apprised by the European countries.

These amendments to the Constitution that both the Western countries and the Turkish public had expected will bring “more democracy and more freedom” unfortunately caused a “hubris syndrome” in the government, to the contrary of all those expectations. After 2010, first the expansion of freedoms came to a halt, then the country started to go backward in the rule of law, democracy and freedoms.

From 2011 onwards, national and foreign media, civil society organisations and politicians started to express more often that the AKP ruled by Recep Tayyip Erdoğan has increased its oppression on press, freedoms of expression and meeting, and started to firm its grip on subjects like drinking alcohol, abortion, etc.

Indeed, the statement Erdoğan uttered at the Parliamentary Assembly of the European Council in Strasbourg “There are some books that they are more destructive than bombs,” was a significant indicator that showed Erdoğan’s perspective toward the freedom of expression.

Year 2013

The year 2013 when Gezi Park Riots  broke out in May as small protests against the local government uprooting the trees from the Gezi Park in Taksim, Istanbul, and later transformed into mass civil protests all around Turkey– has been one of the major turning points for Erdoğan and the AKP. Police used severe force against the protesters and 11 people lost their lives during the chaos. In the aftermath of these events, the government started to tighten its grip over the society.

In the same year as the Gezi Park events, which are recorded as one of the biggest anti-government demonstrations of Turkish history, again Turkish history’s biggest operation against corruption and bribery has been conducted on 17 December 2013.

This investigation, which also involved family members of Erdoğan, some ministers and their sons, has made the Turkish judiciary a target for the government. The members of the judiciary who were running the investigation have been intervened and the investigation was interrupted and prevented from being completed.

Under these circumstances at the end of 2013, Turkey managed to rank only 59^th among 99 countries in the 2014 Rule of Law Index of the World Justice Project. This report stressed that there is a political interference with the judiciary and the freedom of expression has been seriously restricted. Although Turkey having ranked 59^th in the Index caused criticism against politicians and governors, it was going to be understood that these were “the good days” compared to those coming later.

Year 2014

In 2014, the government speeded up its interventions and activities it launched after the 17-25 December corruption investigations in order to take all current and any potential investigations and prosecutions under its control.

First, the judges and prosecutors who were running the 17-25 December investigations have been dismissed from the investigation. They were replaced by pro-government judges and prosecutors who issued a decision of non-prosecution for the investigations and closed the case.

In 2014, the government interfered in another judicial investigation –investigation about MİT (Turkish Intelligence) trucks apprehended while carrying weapons to Syria. In January 2014, in Adana and Hatay provinces, the Public Prosecutor, as part of an already initiated investigation, stopped weapon-loaded trucks which were later found belonged to National Intelligence Agency (MİT) which were carrying weapons to two Al-Qaida linked terrorist organisations ISIS and Al-Nusra.

The government fiercely reacted this and dismissed all of the public and chief public prosecutors carrying out the investigation from their judicial positions and replaced them with prosecutors who closed the investigation.

The government not only closed the 17-25 corruption and MİT trucks investigations, but also embarked on making legislative regulations and applying practices that will transform the judiciary into its “party judiciary.”

As part of this scheme, 210,000 police officers were relocated in only 2014. All the police officers who worked for the 17-25 December corruption investigation have been detained.

The government created a platform called Yargıda Birlik Platformu (YBP-Unity in Judiciary Platform) ran for the HSYK (The High Council of Judges and Prosecutors) election held on 13 October 2014. All state facilities have been utilised for this platform and –as a natural outcome– YBP candidates won the elections. Thus, the judiciary has been completely captured by the government and gone under its control.

Before the end of 2014, two of the early actions of the new HSYK had been to elect 144 members to the Court of Appeals, and 33 members to the Council of State, thus providing the government to seize the full of control in the supreme courts of the country, and dismissing the prosecutors of 17-25 December investigations from their judicial positions.

While capturing the control over the judiciary on one hand, the government has continued its discourse and activities, restricting the freedom of expression on the other. The statement, “We will eradicate the Twitter,” uttered by Erdoğan on 20 March 2014, was indicating that the ruling power had no tolerance at all to any kind of opposition. In 2014, with an increase rate of 44% compared to the previous year, access to 23,558 Internet sites had been banned.

The arrest of many people, including General Director of STV Broadcasting Company Hidayet Karaca and Chief Editor of Zaman Newspaper Ekrem Dumanlı, and the following detention of many people including Mr. Karaca on the eve of the first anniversary of the 17 December investigation took place amongst the government’s practices in restricting the freedom of the press and the media.

The government’s interventions on the independence of the judiciary and its restrictions over fundamental rights in 2014 were reflected on the World Justice Project 2015 Rule of Law Index and Turkey sharply dropped to the 82^nd rank among 102 countries. Its situation in relation to the fundamental rights was even worse: It fell down to the 96^th rank among the 102 countries.

Year 2015

In 2015, the government more intensely continued to apply unlawful restrictions over fundamental rights and freedoms.

Having fully captured the judiciary in 2014, the government continued its operations in 2015 by means of this politicised judiciary. The prosecutors who had conducted the MİT trucks investigation have been detained. Meanwhile, an arrest warrant was issued against the prosecutors who had conducted the 17 December corruption investigation.

In the general elections held in June under the threat of Erdoğan asserting “Give us 400 parliament members and let this issue be settled peacefully,” the ruling party lost its majority for the first time in its 13 years of rule in the Turkish Parliament. This made the government even more furious.

The ruling power intensified its discourse and actions of violence against the Kurds and severely violated fundamental rights and freedoms. After this period of violence, they re-held the elections. This “strategy of violence” had intimidated the society and the ruling party once again captured the majority of the seats in the parliament.

With the fury of losing the elections held in June, the government raided the television channels and newspapers of Koza-Ipek Group with a massive police force, which was known with its opposition to the government and shut all the facilities down.

Well-known journalists Can Dündar and Erdem Gül, who had published and aired the visuals of the MİT trucks investigations, were detained on 26 November 2015 soon after Erdoğan’s threat saying “I will not leave him on his devices, he will pay the price very heavily!”

World Justice Project 2016 Rule of Law Index took the 2015 photograph of Turkey which was now very much deteriorated and seriously deviated from the axis of the rule of law. According to the index, Turkey ranked as low as 99^th among 113 countries under the rule of law, while it ranked 105^th under the fundamental rights.

Years 2016 & 2017

When its practices in 2013, 2014 and 2015 are examined, it can clearly be seen that the current Turkish Government was deliberately trying to carry Turkey day by day to a much more authoritarian point far from freedoms. Even just by looking at the data gathered in those years, it could easily be predicted that the government was going to increase its authority and oppression in 2016.

However, much worse happened and the events that nobody could even imagine unfolded in 2016. Everything has toppled upside down in Turkey after the coup attempt on 15 July 2016, which was titled as “the controlled coup” by opposition leader Kemal Kılıçdaroğlu; named by journalist Ahmet Altan as “the mysterious coup” that granted Erdoğan “the absolute sovereignty”; while described as “God’s Blessing” by Erdoğan himself during the very hours of the coup attempt.

The allegations put forward that Erdoğan has previously planned the coup in order to establish an absolute authority over the country, or he was previously informed about the preparations for a coup and planned to turn this into an opportunity for his absolute power and implemented his plan successfully, can be examined in another article.

We must stress here that, no matter who the plotters or committers were at the background or the foreground of this coup, one thing is certain that after 15 July 2016 in Turkey, a new regime whereby the law is put aside, has been established by the government lead by Erdoğan. In this new regime, Erdoğan is the “One Man” to whom both the legislature and the judiciary have been made subservient.

With the State of Emergency declared on 20 July 2016, the Cabinet of Ministers have been granted the authority to issue emergency decrees, and thus an era of governmental decrees has started in Turkey. The governmental decrees, which, according to the Constitution, can only be issued during a state of emergency and limited only to the exigencies of the emergency, have been used as a rough “opponent elimination device” and started to be arbitrarily issued for nearly any kind of matter.

In the meantime, the governmental decrees that are supposed to be inspected by the Constitutional Court in accordance with the Constitution, have been left completely outside of the judicial supervision with the Constitutional Court’s decree, which openly denies the reason of its own existence by stating that “The Constitutional Court has no authority to inspect the government emergency decrees.”

Since July 2016, Turkey has been governed with the emergency decrees which are kept away from any judicial or legislative scrutiny. With these decrees issued until now, 116,250 public officials have been dismissed from their jobs, 1064 private educational institutions (kindergartens, primary, secondary and high schools), 360 private preparatory courses and supplementary study centres, 847 student dormitories, 48 private hospitals and health centres, 15 private foundation universities, 29 unions that were operating under 2 confederations, 1424 associations, 145 foundations, 175 media and broadcasting companies have been closed down. Meanwhile, 1022 business firms have been transferred to the Saving Deposit Insurance Fund.

On the morning of 16 July 2016, the government, who had already been reigning over the judicial decision making mechanisms since 2014, made an attempt that will turn the judiciary to an organisation that carries out the ruling party’s field services: the government directed judiciary issued arrest warrants for 2745 judges and prosecutors.

The arrest warrants issued even before the identities of the putschist military officers were determined are a clear evidence that shows the government had already been preparing for the coup night and for the elimination process they were going to carry out in the judiciary.

This number of dismissed members of the judiciary has arisen to 5,000 (almost one third of the whole judiciary!) in this period. Considering that the number of votes that did not go to the pro-government YBP candidates during the 2014 judicial election was around 5,000, one can easily deduce how the arrest lists had been prepared.

With the arrests of thousands of judges and prosecutors on the morning of 16 July, the government has become an organ that can carry out all kinds of unlawful operations by means of the judiciary. After 15 July 2016, legal proceedings have been launched against 169,000 people and nearly 71,000 people have been arrested. 50,000 of these people have been detained and judicial control has been applied on 47,000 people. Meanwhile, passports of hundreds of thousands of people have been cancelled.

Among victims of Erdogan’s judiciary, there are nearly 300 journalists of whom 160 are still in jail. Also philanthropists like Osman Kavala, human rights defenders like Amnesty’s Turkey Chair Taner Kilic and pro-Kurdish politicians including HDP leader Selahattin Demirtas are still kept unlawfully in prison.

As a natural consequence of these practices of the government, Turkey’s place in the World Justice Project 2017-2018 Rule of Law Index has dropped even further down and ranked 101^st among 113 countries. It ranked 107^th under the category of fundamental rights.

Within the category of constraints on government power, the new regime led by President Erdoğan, which is immune from all judicial and legislative reviews, has taken its place at the 111^th rank – third from the last – among the 113 countries.

As it can be clearly seen from the data revealed by the WJP Rule of Law Index, Turkey is forging ahead through a very dark path that is stripped from fundamental rights and freedoms, rule of law and universal values. One does not need to be a clairvoyant to guess that Turkey, at this rate, will end up with at the last rank of this index in the forthcoming years.

Just as journalist Ahmet Altan, who has been sentenced to aggravated life imprisonment on 16 February 2018 with the indictment of attempting a coup just because of his writings says, “The smell of this rotting corpse that encapsulated Turkey today is actually the smell of the dying judiciary which has spread to all of the society and it terrifies everyone.

There is a judiciary and a media in Turkey anymore that see justice as “punishing the other”. “The other” is us, all opponents of the AKP. Together with all the institutions of the state, judiciary, too, has been shot and put into a comatose state. This chaos could not be created without shooting the judiciary.”

While the following words of Honorary Head of the Court of Cassation Prof Sami Selçuk  are another summary of the grievous picture drawn by the World Justice Project Rule of Law Index: “For fifty years, we have never gone through a period of time when the judiciary has been clawed and intervened this much.

It is such a pity, so heart-breaking. As a former judge, these days are the days of mourning and embarrassment for me. I never, ever, remember that I felt this much ashamed on behalf of my country, on behalf of the law faculties in my country, on behalf of all the lawyers and law students.”**

*Dr. Ugur Tok is director of the Platform for Peace & Justice.

PPJ- 1 March 2018

Platform for Peace and Justice has updated its report entitled “Non-Independence and Non-Impartiality of the Turkish Judiciary” which was first published in 2017. Including the recent development pertaining to the judiciary-government relations, the updated version of the report elaborates on the abolition of the rule of law in Turkey.

The report takes a comprehensive look at the non-independence and non-impartiality of the Turkish judiciary. A neutral judicial system plays a vital role in the promotion of democracy and the rule of law. However, this has been abolished in Turkey, with the judiciary becoming increasingly pro-government, effecting all levels of society.

The first section of this report examines the Turkish Judicial Council (HSYK/HSK). The independency and impartiality of the first and second instance courts should be evaluated within the context of the HSK, which assigns and dismisses judges and gives permission to carry out disciplinary and criminal investigations against them. The Supreme Courts, which are the third instance, also have its members assigned by the HSK, with investigations carried out by the court’s own bodies. It has been noted that “The power that controls the HSK can control the Turkish judiciary as well”². Members of the Constitutional Court are chosen in accordance with the Constitution, and investigations carried out by the Constitutional Court. Sections two, seven, eight and nine of this report scrutinise these courts respectively.

Whether courts are independent can be evaluated by criteria such as the appointment of judges, irremovability during their term of office, existence of guarantees against outside pressures, and appearance of independence (Findlay v. The United Kingdom, § 73). The judiciary must also be independent of the executive; this is explored in section three, whilst section four looks at outside pressures more generally. It is argued that Turkey’s judiciary has become increasingly non-independent and non-impartial since 2013, however this has been exacerbated by the July 15^th, 2016 coup attempt. Section five of this report details the effects of this event, and section six looks at the re-establishment of Assize Courts to deal with terrorism and political crimes. Finally, section ten outlines other various other findings about interference in judicial independence.

Overall, the data, findings and events in this PPJ report indicate that all the four layers of Turkey’s courts are not independent or impartial, nor do they meet the provisions of the European Convention on Human Rights. It cannot be said that there is an effective remedy that can be exhausted in domestic law, which is needed for international intervention such as tribunals before the European Court of Human Rights or the United Nations Human Rights Council. PPJ recommends that the merits of complaints to these courts should be reconsidered.

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Rebecca Harms together with other Members of the European Parliament and of the EP-Turkey Forum has issued a statement concerning the refusal of the local courts to respect the ruling of the Turkish Constitutional Court to immediately free the journalists and writers Şahin Alpay and Mehmet Altan from jail.

“We highly welcome yesterday’s Turkish constitutional court’s ruling to immediately release the journalists Şahin Alpay and Mehmet Altan, as their rights had been violated under pre-trial detention for well over a year. This decision constitutes a milestone and a vital step to improve the media freedom and freedom of expression in Turkey.

However, we strongly criticise the local courts refusal to follow the Constitutional Court’s ruling to release the journalists and we call on them to implement the Constitutional Court ruling immediately. If the lower courts do not respect the decision of the Turkish Constitutional court, it will result in a further deterioration of Turkey’s constitutional crisis and the erosion of rule of law and the separation of powers.

Last but not least, we call for the release of all unjustly imprisoned journalists and Turkish citizens.”

About the European Parliament Turkey Forum

The EP-Turkey Forum aims to advance a well-informed debate on issues related to EU-Turkey relations from a constructive point of view, while serving as a bridge between Turkey and the EU. The forum acts as platform that brings together European and Turkish officials, political decision-makers, experts, civil society and business actors. In the past seven years, the group has successfully positioned itself at the core of the debate on EU-Turkey relations.

The EP-Turkey Forum is composed of 60 MEPs coming from the major political groups in the European Parliament. MEPs Anna Maria Corazza Bildt (EPP) and Ismail Ertug (S&D) are the co-chairs of the EP-Turkey Forum. MEPs Rebecca Harms (Greens/EFA), Javi López (S&D), Kati Piri (S&D), Marietje Schaake (ALDE) and Jordi Solé (Greens/EFA) are the vice-chairs.

By EMRAH AKSU

During the last four years, the erosion in the law system of Turkey has increasingly become much more apparent and catastrophic. Every occasion of arbitrary practice of law enforcement in Turkey has led to another breach of national or international law as well as grave victimisations. Among victims of the arbitrariness, pro-Kurdish HDP leader Selahattin Demirtas, well-known philantropist Osman Kavala, Amnesty International’s Turkey Chair Taner Kilic, American Pastor Andrew Brunson and a NASA scientist Serkan Golge. One of the most worrisome and symbolic examples of these dramatic situations is the case of Aydın Sefa Akay, who is a judge of the UN Mechanisms for International Criminal Tribunals (MICT)  and a retired Turkish ambassador.

As is known, on 21 September 2016 Judge Akay was detained and then arrested on the suspicion of being a member of the Gulen Movement solely based on the data of being a user of a mobile phone application, ByLock, that could be freely downloaded from Apple Store or Google Play in certain past periods. In the judicial proceedings, Turkish  authorities didn’t recognise Akay’s diplomatic immunity arising from his engagement with the business of MICT and cooperation calls of MICT were left unanswered by agents of Turkish government. In the meantime, Turkish judiciary didn’t comply with the order of MICT to release Akay and to cease all the relevant criminal proceedings. Finally, on 14 June 2017 a Turkish criminal court of first instance sentenced Judge Akay to a seven years and six months of imprisonment on charge of ‘membership to a terrorist organisation’ and released him with a travel ban.

Considering the course of Akay case, the following international legal problems should be underlined:

– In the context of immunities, art. 29/2 of Statute of MICT stipulates that the judges of MICT are subjects to the Convention on the Privileges and Immunities of the United Nation (Convention). On 25 July 2016, Judge Akay was appointed by MICT’s President Theodor Meron as a member of the bench of the Appeals Chamber of MICT to consider the request of review for Ngirabatware case. This assignment connotes that Judge Akay has an engagement with the business of MICT as of July 2016. With regard to art. 29/2 of Statute of MICT, Judge Akay enjoys the immunities and privileges accorded to diplomatic envoys in pursuance of international law. According to an advisory opinion of the International Court of Justice, which has a duty of settling disputes arising out of the interpretation of the Convention, this full diplomatic immunity is valid even in relation with the states of which the MICT judges are nationals. Therefore, Turkish judicial authorities had no options other than to comply with the assertion of Akay’s diplomatic immunity.

– In case a MICT judge is to be investigated or tried by the judiciary of a UN member state, a waiver of immunity has to be issued by the Secretary General of the UN, in accordance with the section 20 of the Convention. In this regard, to fulfill the requirement of having waiver of Secretary General, the relevant state party to UN should submit a request to the Registrar of MICT. However such an application for waiver has never been brought before the MICT by Turkey. Due to this failure of Turkey, another rule of  international law was violated.

– According to the information recently announced at the website of MICT, the review hearing of Ngirabatware case has been scheduled for 8-16 February 2018 to be held in MICT’s branch in Arusha/Tanzania. However Judge Akay is still subject to a travel ban from leaving Turkey due to the conviction against him. According to ‘the Rules of Procedures and Evidence’ of MICT, a Chamber cannot order that the hearing of a case may continue, if the absence of a judge of the chamber will last more than five working days. Hence, in the near future, the case of Ngirabatware will most probably encounter with another obstruction as a result of the absence of Judge Akay that arbitrary functioning of Turkish judiciary caused.

– The fact that Turkey has not recognised the full diplomatic immunity of Akay constitutes a threat towards diplomatic corps serving in Turkey and causes a disturbance for them from the aspect of having an unguaranteed immunity before unfree judiciary of Turkey. This concern was also voiced with a written question in the EU Parliament by MP Brando Benifei. Considering this situation together with other international violations of Turkey such as forced disappearance instances in foreign countries by Turkish intelligence, illegal closure and seizure requests from foreign countries by some Turkish public institutions and unlawful circumvention of the embargo imposed on Iran, it would be reasonable to take into account the inclination of Turkish public institutions to ignore their international obligations especially in the recent corrupt state of the country.

Moreover Akay case consists of the following irregularities and problems from the perspective of domestic law:

– The conviction against Judge Akay relies mainly upon using ByLock application, which he confessed during the judicial proceedings. Bylock is an application that was not prohibited to download or was not secretly spread among the users in its active period. Statistics shows that approximately 600.000 users from more than 40 countries downloaded this app. In other words, it is legally correct that downloading and using ByLock app should be accepted in the context of exercising the freedom of communication as David Kaye, who is the Special Rapporteur of the UN on the Promotion and Protection of the Right to Freedom of Opinion and Expression, rightly argued in his report. Therefore enjoying a freedom like using a mobile app can not be considered as a crime.

– It is possible that most of the things/materials/tools/softwares may be used in committing a crime. However, simply possession or utilisation of these are not necessarily criminal acts. For example, if we realize that most of the robbers wear a mask or certain berets covering all parts of the face, can we accuse all people having or wearing these of robbing or attempting to rob? Or if an extremist group plans  a terrorist attack in their exclusive Whatsapp conversation group, can all Whatsapp users be accused and detained with the assumption of terrorist character of Whatsapp? Of course, not. Consequently, a rational and justifiable assessment necessitates that Judge Akay and other ByLock users cannot automatically be seen as a member of terrorist organisation over solely using ByLock.

– In essense, criminal law aims at finding out all evidences, that definitely prove criminal behaviours of suspects. As a universal principle, without indisputably proving the criminality, people are not seen guilty. In this sense, crime instruments are meaningful and available as far as these were used in committing crimes. The same principle applies to ByLock users too. Unless it is proven that an individual used ByLock app in terrorist or criminal acts, this person can not be convicted on the charge of being member of a terrorist organisation. This procedure requires judiciary to document and examine all the contents of ByLock communications. Accordingly, when it is determined that contents of ByLock correspondences of a certain person comprises all elements of a crime, judiciary may convict and sentence the related person. Otherwise convictions and other criminal proceedings like arrest and judicial control practices are totally unlawful, arbitrary and inconsistent with the material fact. Likewise, Proffesor of Turkish Criminal Law İzzet Özgenç has attached importance to this procedure via his social media sharings . Therefore, Akay decision of Turkish judiciary is legally incorrect, since the content of his ByLock communications were not considered in the deliberation of the court.

– In criminal procedure law, principles about digital evidential data are crucial and delicate. In this context, manipulation and falsification possibility of digital data should be eliminated, digital data should be collected upon the issuance of a judicial decision and all evidences should be obtained through legal challenges. However digital data related to ByLock communications have not been protected from manipulation and intervention of Turkish administrative authorities, as emphasized in the report of FOX IT, a Dutch cyber security company. In addition, Turkish intelligence service derived ByLock user and messaging details from the servers in Lithuania without issuance of a proper judicial decision. Moreover, officials from Lithuania Parliament made it clear that Lithuania has never received a request for legal assistance from Turkey in the context of digital data related to ByLock app. Turkish media reports suggest that intelligence service obtained the ByLock details through hacking or buying . Both of the possibilities imply that acquisition channel of ByLock data is not only illegitimate and illegal but also a breach of international law. Therefore digital evidence on ByLock app do not meet legal standarts and cannot be considered authentic.

– Judge Akay testified in the court that he downloaded the ByLock app upon the recommemdation of Burkina Faso Foreign Minister. Besides he stated that he is a member of Free and Accepted Masons Association and many masons were using ByLock app too. Additionally most of the Turkish correspondents covering judicial developments were using ByLock app to be able to contact judges and prosecutors about important cases . The mentioned examples of ByLock users show that presumption of Turkish judiciary on the connection between ByLock app and Gülen Movement obviously contradicts with the reality.

– In the wake of July 15 controversial coup attempt, intelligence service of Turkey shared a ByLock users list consisting of 215.000 people with law enforcement bodies. Later this number was revised two times as 129.000 and as 102.000. Finally the number of ByLock users were reduced to 91.000. These big changes at the number of ByLock users is very suitable to see that ByLock is a fictional and criminalised tool exploited by Turkish government and judiciary.

In the light of the mentioned unjust and arbitrary approach of Turkish judiciary, it seems many serious international and domestic legal problems and victimisations will continue to arise. Akay case is just a symbolic portrait of the worrying state of the country. We hope Turkish judiciary stops failing in its vital role as soon as possible.

By MELIS TON

Arrest warrants were issued for 2,745 judges and prosecutors just one day after the 15^th of July controlled coup attempt, when even the names of the soldiers who took part in the attempt were not yet known. The profiling lists of who should be arrested had obviously been prepared long before the attempted coup took place.

This was only the beginning and many more purge lists followed. Almost all the people whose names were on the lists were detained, and a large majority of the detainees were arrested. Of those who were not arrested, some were sentenced to house imprisonment, others were banned from leaving the country, and many were released on parole on the condition that they went to police headquarters on certain days and signed in.

The number of judges purged is  4,560

The decision by the Constitutional Court dated 26 July 2017 and numbered 2016/49158 stated in paragraph 19 that more than 4,500 judges and prosecutors had been purged:

Meanwhile, during this process, decisions were made by the HSYK (the Supreme Council of Judges and Prosecutors) to suspend or purge over 4,500 members of the judiciary who were deemed to be affiliated with the so-called FETO/PDY (Fethullah Terrorist Organisation). In this manner, the HSYK made the decision to dismiss 2,847 judges and prosecutors on 24 August 2016, 543 on 31 August 2016, 66 on 4 October 2016, 203 on 15 November 2016, 227 on 13 February 2017, 202 on 17 March 2017, 45 on 3 April 2017 and 107 on 5 May 2017. Some of the appeals for reconsideration were accepted by the HSYK General Assembly and the applicants were reinstated.

The clearest statement concerning the number of purgees was made by Yunus Nadi Kolukısa, the chairman of the Supervisory Board at the Council of Judges and Prosecutors (HSK). “During this time, we the HSK processed 4,521 judges and prosecutors for membership to FETO and dismissed them. Our inspections and investigations still continue,” said Kolukısa on a TRT News channel programme called Uzman Gözüyle Hukuk (Law from the Perspective of an Expert) on the 14^th of July, 2017.

The number rose to 4,560 with the dismissal of 39 more judges and prosecutors on the 5^th of October 2017. The number of dismissals accounts for 29.8 % of the total number.

The number of judges who were either arrested or restricted by other protection measures

Paragraph 19 of the Constitutional Court decision dated 26 July 2017 and numbered 2016/49158 stated the number of judges and prosecutors who were arrested or placed under judicial control is as follows:

According to the information from the Ministry,

As of 24 July 2017, the number of members of the judiciary about whom an investigation is underway within the scope of the FETO/PDY investigations is 4,664.

Of these persons, 1,311 have been released on judicial control (a ban on travelling abroad, obligation to sign), and 97 were released without any judicial control. Furthermore, no arrest warrants were issued for 251 members of the judiciary about whom there are ongoing investigations.

2,431 members of the judiciary, higher court members among them, were arrested as a preventive measure.

Furthermore, 297 members of the judiciary were first arrested as a preventive measure and then discharged. Of these, 274 were placed in judicial control measures.

There are also 271 members of the judiciary who are fugitives and for whom arrest warrants have been issued by investigative authorities, and 6 are still in detention.

   The number of judges kept in solitary confinement is 680

Hüseyin Aygün, lawyer and former main opposition lawmaker, said on his Twitter account @HuseyinAygun62 on the 16^th of November 2016, “After 680 judges and prosecutors, HDP leader Selahattin Demirtaş and his friends have been placed in solitary confinement. Isolation is a crime against humanity.” Aygün’s statement confirmed the number of judges and prosecutors in solitary confinement as 680.

Judges kept behind bars despite they have serious health problems and those who have died

Seyfettin Yiğit, a purged judge, allegedly committed suicide in prison. Mehmet Tosun died outside the prison walls because although he was released after a period of detention, he was dismissed and denied any salary or medical insurance. He had been under treatment for two years when he was arrested. Mustafa Erdogan, a member of the Supreme Court, has died at hospital where he was kept in custody and prevented from recieveing proper medical treatment despite filed petition regarding his advanced brain tumor. Demands for release by dozens of other seriously ill judges and prosecutors have been denied and they have been left to die in prison.

   Conclusion

To sum up, almost one third of the Turkish Judiciary have been dismissed in the last year thanks to the authority granted by state of emergency decrees, with a complete disregard of guarantees for judges and investigation procedures. 4,560 judges and prosecutors have been dismissed and 2,728 have been arrested. Only 297 of those who were arrested have been released, and 2,431 are still in prison. Moreover, although 1,311 judges and prosecutors have not been arrested, they are under judicial control (banned from travelling abroad or ordered to sign in regularly). There are hundreds of members of the the Court of Cassation and the Council of State who are among those who have been arrested. Also two of the Constitutional Court members are still being kept in solitary confinement.

These numbers do not include military judges and prosecutors or inspectors at the Chamber of Accounts who have been dismissed or arrested.

Placing judges and prosecutors in solitary confinement and refusing to discharge seriously ill ones is a blatant violation of human rights that requires an urgent solution.

Sources:

(1) http://www.hurriyet.com.tr/2-bin-745-hakim-ve-savci-icin-goz…

(2) Decision made by The Constitutional Court dated 26/7/2017 2016/49158 para 19 http://www.anayasa.gov.tr/icsayfalar/basin/kararlarailiskinb…

(3) http://www.milliyet.com.tr/4-bin-251-hakim-ve-savci-ihrac-gu…

(4) Decision made by The Constitutional Court dated 26/7/2017 2016/49158 para 18 http://www.anayasa.gov.tr/icsayfalar/basin/kararlarailiskinb…ular

i/bireyselbasvuru/detay/126.html

(5) https://mobile.twitter.com/HuseyinAygun62/status/79884316194…

(6) https://platformpj.org/judiciary-quashed-civilian-coup/

(7) http://m.ahaber.com.tr/gundem/2017/05/29/7-bin-430-feto-suph…

(8) http://www.hukukihaber.net/m/mesleki-hukuk/39-hakim-ve-savci…

(9) https://twitter.com/1ofPurgedJudge/status/929283546489016320…

By LEVENT YILDIRIM

Only one day before their court hearings, lawyers of Nuriye Gulmen and Semih Ozakca, the jailed hunger strikers of Turkey, have been arrested. The warrants were issued for 18 lawyers, all members of two law offices defending the teachers.“The detention of our colleagues today is an attempt in vain to leave Gulmen and Ozakca defenceless,” a lawyer representing the pair told Reuters.

Although a race is going on to violate the rights and freedoms during the investigations and prosecutions that have been conducted in Turkey for more than a year now, one of the most violated rights during this time has been the right to defence. The right of defence is secured under both national law and the Constitution and the European Convention on Human Rights.

Public prosecutors are authorised to file criminal prosecutions and represent the public in criminal procedures. In other words, when a victim files a complaint against someone, the case is not automatically opened against the accused. First the public prosecutor completes his/her investigation, and if s/he reaches a conclusion that there is a strong suspicion of a crime, s/he files a public prosecution and s/he represents the public at the court. The victim, on the other hand, if there is a risk of being harmed by the crime, can only attend the court hearings and will have the right to take legal steps. Filing a case does not mean that the accused is counted guilty. By filing a case, the prosecutor asserts a claim against the accused and requests the court impose a penalty on the accused. In response to this, the accused defend themselves against the claims.

The court hears both the prosecution and the defence. Based on the presented evidence, if the court reaches an absolute result, it will issue a verdict. That is, in judicial procedures, while the prosecutor is one foot of the trivet, who represents the public, the defence is another foot. While the law has given broad authorities to prosecutors, it also entitled the accused some broad rights. Most important ones of these rights are the right of defence and the right of benefitting from legal counsel -the right of choosing a lawyer.

Despite the fact that it is held very significant and explained in the laws in full detail, the right of defence is being ruthlessly trampled in recent times. Although the Constitutional Court had been issuing hundreds of decisions about infringements of rights even for tiny irregularities, today, the right of defence is being taken severely and recklessly away from the accused and the suspects.

With the Emergency Law Decrees issued during the current state of emergency; the laws are unlawfully and arbitrarily changed, innocent people are not only detained and victimised, they are also stripped of their rights of defence. As soon as the investigations are started, access to all the files are blocked and on the basis of the amended law, public prosecutors are now able to issue orders of secrecy without needing a court order.[1]

The way that all of the public prosecutors in all the court houses of the country are giving orders of secrecy for all of the investigation files launched against more than 150 thousand people; the way that the investigations are conducted and the legal procedures are implemented, quite clearly show that the orders of secrecy are issued as a result of an executive order given from the government centre. As if unlawfully dismissing innocent people from their jobs, arresting, and then putting them under detention are not enough, by issuing unjustified, baseless, high-handedly written orders of secrecy, the investigation files are hidden away from the accused right from the start; and people are kept in prisons for months, not knowing even what they are accused of. The contents of the case files are kept very secretive, as if they are filled with many hard evidence, and many of the documents are not uploaded onto UYAP (national judicial network project) because they are not scanned, and those that are scanned are uploaded as confidential files. Especially when the individuals, who have no knowledge about law and do not know how to prepare their statements, require to hire a lawyer, they face with various difficulties. Many lawyers have been tried or even imprisoned just because they wanted to defend the suspects of these cases.[2]

With another change in the law conducted with the Emergency Law Decree, now they can apply bans on lawyer visits. In other words, there are cases where an arrested person is unquestioningly kept under detention for days, without being able to see their family members or lawyers, and being deprived of most fundamental needs.[3]

The right violations that have peaked during the investigations are also continued during the prosecutions. These right violations carry on even after the orders of secrecy are removed when the indictments are accepted by the courts and the people can have access to their case files. Especially those who financially cannot afford to hire a private lawyer, request lawyer from the bars which is obliged to appoint a lawyer to people who cannot afford.  During the Ergenekon & Balyoz Trials, Ümit Kocasakal, Istanbul Bar President, had been present at every court hearing and witnessed the trials as observer, ignored his position as being an observer, incited and organised other lawyers at the courtroom against the court members.

However, despite the fact that appointing a lawyer is legally mandatory when a defendant requests so, Ümit KOCASAKAL has replied the requests for lawyer appointment with these words: “Am I that stupid to appoint lawyer to the suspects of Fetö! Of course, we did not appoint anyone for them, and we will not!”

After using such statements under normal judicial circumstances, he should have been immediately disbarred let alone being allowed to remain as the head of a Bar. In many places, for both interrogations and statutory defence duties, solutions are sought to find lawyers by writing to the bars.[4] The reason why the lawyers do not want to take the defence of these cases is not because of the situation of the accused or the suspects, or the content of the files, but it is because of the systematic pressure, and the fear of falling into trouble. Nevertheless, the violations do not end for the accused even if they manage to find a private lawyer, or accepted the lawyer appointed by the bar association.

Requests by many accused for being personally present at the courtroom where the hearing is held are rejected despite the existence of very serious accusations against them, and the rights violations and long arbitrary detentions they are facing with. They are forced to make their oral statements over an online audio-visual system.[5] Because of the technical problems of this system, not all of the oral statements of the accused is recorded into minutes, while, when their speech is found too long, the volume of the system is turned down. On the other hand, they are not able to face with the claimed evidence or ask questions to the witnesses present at the court hearing, nor can have an interview with their lawyers. As for many courts, statements of the witnesses are taken with orders, and they are not faced with the accused at all, and the accused persons are denied the right to ask questions to the witnesses. Meanwhile, in order to make it more difficult for the accused to prepare their defence statements, some bans are imposed in the prisons and on the social media, under the name of “necessary measures”. In prisons, books are banned for ridiculous reasons, and letters of application and petition samples that are sent to the prisons, are rejected and not allowed to be taken into prisons.[6] When the detainees -who cannot reach the books, law texts and other legal documents they need- are also denied to reach the documents sent by their family members, they are then left completely stripped of their rights to defend themselves. Access to many social media links, which provide samples of statements and application letters, is denied with written and reasonless orders.[7]

All these preventions and similar restrictions are elaborately planned and systematically applied in order to hinder the people from claiming their rights and defend themselves, and prevent the committed violations from being uncovered. In order to run the investigations and interrogations with executive orders, and to preclude the revealing of the very seedy outlawry, they are trying to hurriedly finish the trials against the accused, convict them and close the files as quick as possible.

Thinking of the possibility of the cases to be re-opened and the perpetrators of these unlawful treatments to be brought into account and used as evidence against them in future, they are trying to prevent these unlawful acts from being mentioned in the court files by systematically restricting the use of the right of defence. The fact that different members of the judiciary in all around the country committing the same unlawful acts shows that such procedures are performed with an order given from one centre.

Although the members of the judiciary, who are carried away by the influence of the power holders and yielded themselves to the period of outlawry and ingratiation, and issued every type of unlawful decrees, seemed to have secured their positions today. However, when all these unlawful activities and treatments will be disclosed and the violations of rights will be declared with the decrees of the national and international courts, they will not be able to hide behind any excuses and will be held responsible for all the material and moral damages they had caused. Although they are acclaimed as heroes by the biased media today, when the law and democracy is re-established in the country, due to the harms they had given to the country and the victimisations they inflicted upon innocent people, they will be convicted in the court of conscience, will lose their credit in public’s eye and fall into disgrace.

[1] http://www.haberturk.com/gundem/haber/1273601-hkim-karari-gereken-bircok-isleme-savcilar-karar-verilebilecek

[2] http://www.milliyet.com.tr/feto-avukatlarina-operasyon-22-gundem-2390857/

[3] http://www.ihd.org.tr/uzun-gozalti-suresi-ve-gozaltinin-ilk-5-gunu-avukat-gorus-yasagi-uzerine-yapilacaklar/

[4] http://www.halkinsesi.com.tr/m/zonguldak/fetoye-avukat-araniyor-h29261.html

[5] http://dihaber.pw/TUM-HABERLER/content/view/19943

[6] https://www.google.com.ua/url?sa=t&source=web&rct=j&url=https://www.evrensel.net/haber/300018/cezaevlerinde-iskencenin-bir-baska-boyutu-mektup-yasagi&ved=0ahUKEwjr0JeJyJHWAhXDuBQKHRqdDRkQFghiMBI&usg=AFQjCNFQmujlk41jkTNb9DGuFRq4QMwQ_g

[7] https://twitter.com/yargiicinadalet/status/881893712502153216

By LEVENT YILDIRIM

It has often been stated in the articles written so far that there has not been a court verdict acknowledging the existence of a terrorist organization called “FETO/PDY”. Nothing has changed in this regard even though it has been over a year since the attempted coup of July 15. Some of the readers could say, “There are a lot of court decisions about this issue. There is a recent verdict and decision of approval given by the 16^th Penal Chamber of the Court of Cassation about the attempted coup.”

I would like to ask just a single question to those in this opinion “Is it really possible nowadays for the courts to give a verdict contrary to Erdogan’s and the government’s point of view and wishes?” Everybody knows that this is not possible anymore in such a system in which one single person controls the legislative, executive and judicial powers.

According to Article 6 of the European Convention on Human Rights (ECHR), “Everybody charged with a criminal offence is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Accordingly, the existence of a terrorist organization called FETO/PDY has not been acknowledged by an independent and impartial court established by law paying respect to all assurances of the right to fair trial. As long as the belief that “we possess all the powers of the legislature, judiciary and executive” or “everything belongs to us” prevails, nothing will change. The 16^th Penal Chamber of the Court of Cassation’s approval of the decision issued by Erzurum 2^nd Criminal Assize Court on the attempted coup does not change the situation.

In this article, we aim to prove, with evidence based on the criteria required by ECHR, that the 16th Penal Chamber of the Court of Cassation, which was established to try terror crimes, is not an independent and impartial tribunal as it was well reflected in the decisions of the Chamber. While doing so, we will consider such criteria as the appointment of its members, their tenure in the position, the existence of guarantees against pressures coming from outside, and whether the Chamber owns independent mechanisms.

1. Judicial independence has been destroyed in Turkey. The 16^th Penal Chamber of the Court of Cassation is just another circle of the judiciary that has lost its independence.

It is well-known by everyone that the government has been taking steps to control the judiciary since the bribery and corruption investigaitons of December 17/25, 2013. These steps reached their peak after the attempted coup of July 15, 2016 and the constitutional amendment, which was accepted on April 16, 2017. Now, it has to be acknowledged that the legislative, executive and judicial powers have been gathered under one hand.

Galip Ensarioglu, an MP in the ruling party, stated on a TV program, “the legislative power belongs to us, so do the executive and judicial powers.” Then Burhan Kuzu, another MP, senior advisor to the president and an expert on constitutional law, announced, “Everything belongs to us”. [1] These instances show us that the members of the ruling party do not hesitate to confess this fact.

Moreover, the same kind of evaluations have been made in the European Commission Progress Reports. The 2015 Commission Progress Report on Turkey states, “The independence of judiciary and principle of separation of powers has been harmed and the judges and prosecutors have been under severe political pressure”. The 2016 Progress Report says, “The strong political pressure on judges and prosecutors is continuing during the term of the report.”

2. The highest institutions and representatives of the judiciary have openly declared their side and point of views in emerging disputes and so have lost their impartiality

The highest institutions and representatives of the judiciary have openly declared that they share the same opinions with the government on both Gulen Movement and on the perpetrator of the attempted coup of July 15 even if there has not yet been any trial and verdict on it. In his statements on various dates[2], Mehmet Yılmaz, the then deputy chairperson of the High Council of Judges and Prosecutors (HCJP), and in the decisions of dismissals given anonymously at numerous times by the HCJP after July15, it has been declared that Gulen Movement is a terrorist organization called “FETO/PDY” and that the attempted coup of July 15 was plotted by this organization. Furthermore, in its press release issued on November 21, 2016, the Presidency of Court of Cassation, which is the court of appeal for the decisions given by the penal courts dealing with coup trials, declared that the incident of July 15 was a coup attempt against democracy and rule of law and that it was plotted by the terrorists who were the members of FETO/PDY. [3]

Considering the statements of the highest institutions and representatives of judiciary which involve definite judgements and comments reflecting bias, no matter what the proofs are and who the real perpetrator of the incidence is, the courts (which include the supreme courts) cannot give any verdicts contrary to the thesis of HCJP which works as an institution totally controlled by the government. The judges who dare to do such verdicts have to be ready to be exiled, dismissed or arrested. Therefore, it is clear that under these circumstances, it is not possible to mention judicial independence in the country.

The suspension of the judges who made the decision for the release of journalists[4]; the prosecution brought against judges of Hatay 2^nd Criminal Assize Court, who gave the decision that “There are not any official documents proving the existence of FETO/PDY” and “Bylock alone cannot be adequate evidence” [5]; and the exile of chief judge and other judges of  Antalya and Gaziantep Regional Court of Appeal, whose verdict reads that Bylock alone cannot be adequate evidence[6], are best-known examples of this situation. If a search is conducted since December 17/25, hundreds of other examples just like these can easily be found.

3. The 16^th Penal Chamber of the Court of Cassationis not independent in respect of its foundation

Article 6 of the European Convention on Human Rights (ECHR) states; “Everybody charged with a criminal offence is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The phrase “established by law” guarantees the principle of the natural judge. The principle of the natural judge expresses the determination of both the foundation and authorities of the tribunals, and the procedure to be applied by law before the emergence of the subject matter in dispute.

For a long time, as a court of appeal, the 9^th Penal Chamber of the Court of Cassation was responsible for reviewing the terror related crimes. However, this responsibility was handed over to the 16^th Penal Chamber of the Court of Cassation, which was founded in accordance with the law number 6572 issued on December 12, 2014. With this law, the number of chambers in the Court of Cassation was increased and 144 new members were appointed. It was a part of the attempts made by the government to take full control of the judiciary following the corruption investigations of December 17-25, 2013. The members of this Chamber were appointed by the HCJP, which is predominantly under the control of the Platform of Unity in Judiciary (PUJ). It is known that the PUJ is controlled by the executive (the government). In other words, a new judiciary authority was created to replace the long existing one after the emergence of the alleged crime. In term of its foundation and the appointment of its members, the 16^th Penal Chamber of the Court of Cassation is a judicial authority that is created only after the alleged crime was committed. It is impossible to talk about the independence of a court when the area of jurisdiction of the courts is changed, when the judicial authority responsible for the trials is replaced, and when a court is terminated in order to divert the dispute to a specially created judicial authority.

Establishing new chambers in the Court of Cassation, appointing new members to the courts and the changing the area of jurisdiction were not done in order to ensure fair trial and reveal the truth. It is just like the foundation of Criminal Courts of Peace and Specialized Courts of Terror Crimes following the emergence of these crimes.

In its fight with the Gulen movement, the government, which holds the power of legislation, first called the movement as a “Parallel Structure”. Then it harshened its stance day by day. At the end, the government started to call the movement as “FETO/PDY armed terrorist organization”. In order to reach its goal, the government also started to tightly control the judiciary and specifically the courts that would make the decision about the Gulen Movement. Furthermore, to prevent the courts from making decisions contrary to its political views and interests, to frighten and deter opponents and the ones who do not have similar views to theirs by means of trials in the courts, and to consolidate its ruling in the country, the government resorted to setting up new courts and continuously changing the authorities of the judges and their places of assignment. The changes in the structure and duties in the Court of Cassation and the purges were all carried out to reach that goal. These arrangements are evidently against the principle of natural judge and violate Article 37 of the Constitution and Article 6 of the ECHR.

4. The appointments to the 16^th Penal Chamber of the Court of Cassationreveals that the Chamber is not independent and objective

The High Council of Judges and Prosecutors (HCJP) is an organization whose members are mainly from the Association of the Unity in Judiciary (AUJ), which was set up before HCJP elections of October 12, 2014 as a platform (Platform of Unity in Judiciary (PUJ)). It is a well-known fact by everyone including many international institutions that the government intervened in the HCPJ elections through PUJ. From the moment PUJ was founded, the representatives of PUJ and the members of HCJP from PUJ shared the same points of view with the government. They declared that their goal was to fight against “the parallel structure” which the government claimed to exist after December 17-25. As it was described in the press release of PUJ dated June 11, 2016, the members of PUJ are lawyers and prosecutors who came together willingly to eradicate the so- called “parallel structure” as they feel uncomfortable about it. That is to say, the members of PUJ supported the government in the emerging dispute and just like the government they claimed that the Gulen Movement is the “parallel structure” and considered it as an enemy.

As it is among the Bangalore Principles of Judicial Conduct of the UN, judges must be independent of the society in general and of the parties to the dispute in particular. Judicial independence reveals the need for disputes between persons to be resolved by a neutral third party outside the dispute. The independent jurisdiction must be in a position of the third person who has no relation to the dispute, has no prejudice against the parties, and is not under any threat. However, in the dispute relating to the so-called “parallel structure”, the members of PUJ supported the government’s point of view. Showing prejudice against the other side, they have made comments reflecting bias in the dispute. Since the members of the judiciary from PUJ came together with the purpose of struggling against the alleged “parallel structure”, it is definitely unethical for them to take part in the trials to be initiated on this issue. It is not possible to expect that these members of the judiciary will be impartial and act objectively in these trials.

Considering its formation, appointment and selection of its member, its members’ identical views with the government on the alleged “parallel structure”, it can not be said that the 16^th Penal Chamber of the Supreme Court which is appointed as the appeal authority in the proceedings against the “parallel structure” allegations will be independent and impartial.

5. The purges in the Supreme Courts have abolished their independence.

The most important indication of the independence of a court is that its judges can not be dismissed before their term expires (Campbell and Fell/England, paragraph 80 – Lauko/Slovakia, paragraph 63). The members of the Court of Cassation had the right to continue their duties until the age of 65 according to the law, but with the Law No. 6723, which was published in the Official Gazette dated July 23, 2016, all Supreme Court members were dismissed. This change abolished the independence of the Supreme Courts. The dismissal of the members of the Court of Cassation by law is against the principles of “judicial independence”, “legal guarantee of judgement” and “rule of law”. After this purge, the HCJP, which was fully controlled by the ruling party, elected new members to the Court of Cassation, but this election was not based on objective criteria, which led to the questioning of the independence and impartiality of the members of supreme members.

Since neutrality requires political immunity above all else, independence must first be ensured against the legislative and executive organ. The judicial organs can not be used for the realization of certain political interests, as it can not be limited for the reason that it prevents the realization of certain political interests, nor can it be minimized for the realization of political interests.

Hence, the independence of these courts was abolished by the dismissal of existing members and the election of members after the purge.

6. The decisions of the 16^th Penal Chamber of the Court of Cassation show that it is not independent and impartial

Under this heading, we will first examine the verdict of conviction about the judges Metin Özçelik and Mustafa Başer issued by the 16^th Penal Chamber of the Court of Cassation as a first-instance court on April 25, 2017.[7] Then, we will discuss the decision of approval made by the 16^th Penal Chamber of the Court of Cassation as an appeal authority after reviewing the decision issued by 2^nd Criminal Chamber of Erzurum Regional Court of Appeal about the former military personnel Murat Yılmaz and Murat Koçak[8], who were tried for involvement in the attempted coup of July 15. This decision will be contrasted shortly with the Chamber’s decision to overturn the verdict on Ergenekon case.

1. a) The Chamber has displayed that it is not impartial by engaging with matters that are not subject to trial and appeal

As it is known, the basic element of the crime of both armed organization (Turkish Criminal Code, Article 314) and the violation of the constitution (Turkish Criminal Code, Article 309) is resorting to “force and violence.”

In Özçelik and Başer case, the alleged crime for the defendants is their judicial decisions (recusation and release decision). That in the Yılmaz Koçak case is the existence of their names in the appointment list of Martial Law. In other words, the alleged crimes do not involve element of force and violence in these cases.

Given the fact that there is no definite verdict on whether the Gulen Movement is a terrorist organization, the courts can decide whether or not it is a terrorist organization only if all the actions that are sufficient to decide on this issue are made the subject matter of the court proceedings. Otherwise, it is necessary to wait for the result of the cases in which this matter is judged. In the various statements made by especially Erdogan, politicians and Mehmet Yılmaz (the then deputy chairperson of HCJP), and finally in the indictments, it has been claimed that “FETÖ/PDY” gained the character of an armed organization after the attempted coup of July 15, 2016. Accordingly, other courts must wait for the final decision of the main case about the attempted coup of July 15. Only if a final decision that the crime was committed by the Gulen Movement and therefore it is a terrorist organization is given, they can make their own decisions.

There is no case filed at the 16^th Penal Chamber of the Court of Cassation as a court of first instance or at the 2^nd Criminal Chamber of Erzurum Regional Court of Appeal about the attempted coup of July 15 after which the Gulen Movement gained the characteristics of an armed organization and about the claim that the perpetrator of the coup was the Gulen Movement. Thus, the decision of the Chamber (and therefore of the 2^nd Criminal Chamber of Erzurum Regional Court of Appeal) in this matter is an extortion of authority and a flagrant breach of impartiality.

For example, in the justification it is said, “The attempted coup of July 15 was carried out by the members of the FETO/PDY organization who had been infiltrated into the Turkish Armed Forces with the support of international power centers, as happened many times before.” Even though not all the aspects and issues of the attempted coup were presented and discussed in the court in Erzurum, the chamber’s making decision about the attempt and delivering opinions on the issues that are not subject to the trial is both a breach of its impartiality and reflecting bias. This situation hinders the chamber from dealing with all subsequent proceedings in this matter and is considered to be a reason for the refusal of the judge. In fact, there is no difference between the statements made by the politicians about the issue in the first minutes of the attempted coup and the Chamber’s declaring that the attempted coup of July 15 was carried out by the members of the FETO/PDY organization.

1. b) The clearest evidence that the Chamber has lost its neutrality is its making decision based on the proofs that have not been evaluated in the local court.

The 16^th Penal Chamber bases its decision that attempted coup of July 15 was carried out by the members of the alleged FETO/PDY organization on the testimonies and confessions of many suspects, open source information, court decisions, case files, investigations conducted, and findings of official institutions. None of this evidence has been discussed before the local court, and the statements including confessions have not been heard there either. Incomplete court decisions, case files and ongoing investigations were accepted as “definitive evidence” and the Chamber made its decision based on them. It is known that “open source information” consisted of news and comments provided by the Internet. This information can not be considered as evidence.

What should particularly be emphasized here is “testimonies and confessions of many suspects”. Related to this issue, it is stated in the Report of Turkey prepared by the UK Parliament Foreign Affairs Commission that they do not have the information that the attempted coup was carried out by the Gülen Movement.[9] The report says; “The evidence that the Gülenists are responsible for the coup attempt is usually based on the confessions of the coup attempters. However, since these confessions are likely to have been obtained as a result of torture (there are pictures of attempters being beaten while in custody), the Parliament doubts the credibility of this evidence.” [10]

As can be seen, while the UK Foreign Affairs Commission, which adopted an objective approach to the issue, was skeptical about the credibility of the confessions, the 16^th Penal Chamber of the Court of Cassation accepted them as “res judicata” even though they had not been discussed at local courts and they had been annexed to the file from other investigation files. According to Article 217/1 of the Code of Criminal Procedure, “The judge can only make his decision based on the arguments which are presented to him and discussed in his presence.” The present situation is a clear violation of this article and it is not possible to say that the decision is lawful. The Chamber’s approach can only be described as a serious violation of the law, given the fact that the owners of these confessions on which the Chamber based its decision stated that these confessions were made under torture.

1. d) Whether or not a court is impartial sometimes manifests itself in its decisions made in similar cases.

Let us explain how the Chamber gave different verdicts in the same/similar issues by contrasting its decisions on the subject matter of this article, Ergenekon case and the “Military Espionage” cases in İzmir.

1. aa) The Chamber has adopted contradictory approaches to the same issues in the alleged “FETO/PDY” case and in its decision to overturn the verdict on Ergenekon case.

In its decision to overturn the verdict on Ergenekon case, the 16^th Penal Chamber of the Court of Cassation stated; “The verdict is to be based on the evidence provided in the trial. It can not be based on evidence that is not discussed. Evidence must be obtained in accordance with law. Otherwise, the decision can not be based on it. As a rule, in order for all evidence to be debated during the prosecution phase, it must be presented in a public hearing and in the presence of the defendants. However, as explained above, while giving its decision on approval of Yilmaz and Koçak file, the Chamber based its decision on the confessions of the suspects that were not discussed before the local court. Similarly, in the Özçelik and Başer file, the Chamber made its decision of approval as a first instance court, and it based that decision on the evidence that had not been presented to it.

One of the reasons why the Chamber made the decision to overturn the verdict of Ergenekon Case was that the verdict had been based on the testimonies and sound recordings of Tuncay Güney. He was not one of the suspects in the Ergenekon case and there was a strong doubt that illegal interrogation methods were used in the case in which he was a suspect. However, the same Chamber based its decision about the alleged “FETÖ/PDY” on the testimonies of suspects in other cases although there was a strong possibility that these testimonies had been taken under torture (which was mentioned in the report of the UK Foreign Affairs Commission).

Furthermore, the Chamber based its decision to overturn the verdict of Ergenekon Case on the fact that Özkan Kurt was a member of military, yet his testimony was taken by the Directorate of Anti-Terror Branch and there were not military police during this stage. On the other hand, in the alleged “FETO/PDY” case, the fact that the testimonies of the confessor soldiers had been taken by the police in the Directorate of Anti-Terror Branch seemed to be ignored by the same Chamber. It also ignored the photos of soldiers who were tortured and ill-treated there. The Chamber did not investigate the allegations that prohibited interrogation methods had been resorted to while taking testimonies of those soldiers by the Directorate of Anti-Terror Branch either. It is not possible to legally explain why the Chamber adopted lawful and justifiable approaches in the Ergenekon case but contradictory approaches in the alleged “FETO/PDY” case.

The Chamber considered the testimonies and confessions that had not undergone the process of trial as definite judgement without investigating whether these are taken by illegal interrogation methods. This has been recorded as a clear evidence of the supreme court’s losing its credibility and impartiality.

1. bb) The decision of the 16^th Penal Chamber of the Court of Cassation about Bylock is also biased and unlawful

Since so many things have been written about the fact that Bylock is unlawful evidence, let us briefly touch on the subject to the extent concerning our position here. Related to the Bylock issue, let us ask a question: If the Bylock data, which was considered as evidence of membership of organization, were the issue in the Ergenekon case, would the Chamber make the same decision again?  No doubt, it would not. Let us also say that there is no need to study law to reach this conclusion. Anyone who knows how the Bylock data was collected and who reads the decision of the Chamber to overturn the verdict of Ergenekon Case will give the same answer. When you read the information on Article 134 of the Turkish Code of Criminal Procedure which was mentioned in the decision of the Chamber to overturn the verdict of Ergenekon Case under the subheading of “c- Searching, Copying and Seizure in the Computers, Software and Logs”, one cannot escape but conclude that Bylock data is unlawful evidence.

For example, in the decision of the Chamber to overturn the verdict of Ergenekon Case, it is said that; “In criminal proceedings, evidence must be legal and must be obtained in accordance with the law. Digital evidence obtained from suspects or defendants must be collected in accordance with the technical requirements set by the law, and submitted to the judicial authorities in a complete, unspoiled state so that the findings of the investigation and prosecution can be handled in a fair trial. However, it is clear that Bylock data is obtained by hacking servers in Lithuania through computer piracy. Let alone the data has not been collected in accordance with the law; the confidentiality, integrity, and credibility of the digital data obtained in this way have been so seriously harmed that there is no way to use it as evidence in the case. In the similar cases of Sledgehammer and Military Espionage, the Constitutional Court gave the decision that there was a violation of law. If the 16^th Penal Chamber of the Court of Cassation applied the same justifications in this case as in their decisions on the Ergenekon case, it would have to accept that Bylock data was illegal evidence and that a decision could not be based on it. The contradictory decisions of the Chamber on the Ergenekon and the alleged “FETO/PYD” cases are one of the biggest proofs that it can not give impartial decisions anymore.

Likewise, the 16^th Penal Chamber of the Court of Cassation has decided to endorse the acquittal decision on the grounds that “HTS records and wiretapping can not be evidence alone” in the case of “military espionage” in Izmir.[11] HTS records which show to whom, where and when one communicates are not considered sufficient evidence for conviction because their content is unknown according to the established practices of the Court of Cassation. However, the Bylock data (even if collected legally) is a much weaker evidence than the HTS records. It is clear that this information, which has no record of, with whom, when, and where one communicates, and whose content is not determined, can not be used as evidence against persons. While the 16^th Penal Chamber of the Court of Cassation has made a decision that “HTS records and wiretapping can not be the only evidence”, it has accepted the above-mentioned Bylock data alone as an evidence of the membership of a terror organization. This leads to the impression that it has made differring decisions depending on the cases (parties).

1. d) That the approval of the verdict was made at a speed not seen in the history of the Turkish judiciary results in the suspicion that the judiciary is intervened.

Let us take a brief look at the progress of the case: A trial was scheduled against Murat Yilmaz and Murat Kocak on October 28, 2016 in Erzurum 2^nd Penal Assize Court. On 5 January 2017, the court ordered a conviction of the defendants. 2^nd Penal Chamber of Erzurum Regional Court of Appeal (RCA) refused the appeal objections with its decision dated March 2, 2017. This decision was also appealed, but the 16^th Penal Chamber of the Court of Cassation approved the decision of 2^nd Penal Chamber of Erzurum RCA. On July 17, 2017, the justified decision of the Chamber of the Court of Cassation was announced. In other words, within 8-9 months, trials and investigations were conducted and completed in 3 separate courts. Considering the cumbersome nature of the Turkish judiciary and the fact that so many files have been accumulated, this is a surprising speed. Even if only notifications, defense periods, writing of reasoned decisions, their notification and appeal periods etc. are considered, the process can not be completed in 8-9 months. Naturally, it was not possible to present all evidence to the court and to discuss them in open hearings within this period.

Normally, the decisions of approval do not exceed one single page. However, it appears that the Chamber has accepted every evidence that is not discussed at the local courts and that it has touched all the subjects covered in the continuing cases including the notion of “mistake” in Article 30 of the Turkish Penal Code (TPC). So, what is the reason for this rush and writing such a detailed justification that contains issues not included in the case? The answer to this question is hidden in the news of the pro-government media like; “This decision, which counts the use of Bylock as a membership of the FETO, will be a guide for other courts,”[12] “The Court of Cassation refuted the defense of the people involved in the attempted coup.”[13] It is understood that the file in Erzurum was chosen as the pilot file and it was concluded in a short time even though it is contradictory to the decision to overturn the verdict of Ergenekon Case made by the 16^th Penal Chamber of the Court of Cassation. Of course, President Erdogan’s statement that “serious verdicts of conviction will be made until the end of the year”[14] should be noted here. This statement could be considered as giving direction to the judiciary.

The primary purposes are to set a precedent for the continuing trials, to prevent the judges from making decisions contrary to government’s point of view by telling them that “the Court of Cassation holds our opinion” and “the Court of Cassation is backing you.”

This is the story of independence and objectivity of 16^th Penal Chamber of the Court of Cassation. Unfortunately, the grave picture depicted in this article belongs to a supreme court. From the Criminal Courts of Peace to the Supreme Court, the same situation exists in all the stages of jurisdiction, and it is no longer possible to talk about judicial independence in Turkey. Naturally, it is not possible to talk about the existence of the rule of law in a place where judicial independence and legal (natural) judicial security are absent, fundamental rights and freedoms are abolished, and legal security of persons is not ensured.

In spite of all these facts, if there are people still claiming the existence of judicial independence in Turkey, let me ask them a question: After the suspension of the judges who made the decision to release the detained journalists, do you think that it is possible for the newly appointed judges to make the same decision?

[1] http://t24.com.tr/haber/akpli-ensarioglu-yasama-bizde-yurutme-bizde-yargi-bizde-her-sey-bizde,334979

[2]http://www.cumhuriyet.com.tr/m/haber/turkiye/604177/HSYK__ihraclarin_neden_darbeyi_bekledigini_acikladi.html

http://www.cumhuriyet.com.tr/m/koseyazisi/614303/HSYK_Baskanvekili__Avrupa_tercumeyi_bile_beklemedi.html

[3] http://www.yargitay.gov.tr/sayfa/basin-aciklamasi/documents/21112016BasinAciklamasi.pdf

[4] http://www.aljazeera.com.tr/haber/tahliye-karari-verenler-aciga-alindi

https://m.bianet.org/bianet/insan-haklari/185129-21-gazeteci-icin-tahliye-karari-veren-hakimler-aciga-alindi

[5] http://www.milliyet.com.tr/hsyk-feto-cu-hakimler-icin-gundem-2322086

[6]http://www.cumhuriyet.com.tr/m/haber/turkiye/727559/_Bylock_kararı_bozuldu_Emsal_niteligindeki_karar_hukum_durdurdu.html

https://www.evrensel.net/haber/319569/bylocku-delil-saymayan-hakim-suruldu

http://www.adaletbiz.com/m/ceza-hukuku/gaziantep-bolge-adliye-mahkemesinden-bylock-bozma-karari-h156217.html

http://odatv.com/bylocktan-verilen-mahkumiyet-kararini-bozan-o-hakimler-suruldu-2705171200.html

[7] http://aa.com.tr/tr/turkiye/yargitayin-ilk-bylock-tespiti-gerekceli-kararda/842768

[8] http://aa.com.tr/tr/15-temmuz-darbe-girisimi/yargitayin-fetonun-darbe-girisimine-iliskin-ilk-onama-kararinin-gerekcesi-aciklandi/863575

[9]http://t24.com.tr/haber/almanyadan-sonra-ingiltere-darbenin-gulenciler-tarafindan-gerceklestirildigine-dair-bilgi-yok,395602

http://gazetekarinca.com/2017/03/britanya-parlamentosunun-raporu-gulen-hareketi-darbe-girisiminden-tamamiyla-sorumlu-olmayabilir

[10] http://washingtonhatti.com/2017/03/26/ingiliz-parlamentosu-da-gulencilerin-darbenin-arkasinda-oldugundan-emin-degil

[11] http://www.hurriyet.com.tr/yargitay-izmir-askeri-casusluk-davasina-beraat-40259615

[12] http://aa.com.tr/tr/turkiye/yargitayin-ilk-bylock-tespiti-gerekceli-kararda/842768

[13] http://m.ahaber.com.tr/gundem/2017/07/21/yargitay-darbecilerin-savunmasini-curuttu

[14]http://www.cumhuriyet.com.tr/m/haber/siyaset/775865/_Yil_sonuna_kadar_ciddi_manada_mahk_miyet_kararlari_gelecektir_.html

By MELIS TON

Ergenekon & Balyoz (Sledgehammer) Trials are the most controversial legal cases in Turkey’s recent past. On the one hand, there were ammunitions that were buried in the ground in different cities, written documents that had been showed by the judiciary as the evidence of the coup plans, voice records showing that some state officers, academics and business people involved in illegal activities to topple the AKP government in an antidemocratic way. The judiciary found the evidence sufficient to rule that these people have formed a criminal organization. On the other hand, many like Gareth Jenkins slammed the trials by claiming that some evidence presented at the court are fraud and the indictments have significant shortcomings.

From the both sides, very few people actually read and examined the indictments which contained thousands of pages and the justified decisions which contained tens of thousands of pages.

Although Jenkins is one of those few people who attempted to read indictments it is not clear if he read all of the indictments and justified decisions in their entireties. The discussions on the trials were usually built on media reports and statements of popular figures such as lawyers of the defendants and journalists who followed the cases.

Ergenekon & Balyoz trials had allegedly been launched and run by police and judiciary members who have link with the  Gulen Movement or close relationship with the AKP government. After the corruption probes of 17-25 December 2013 that President Erdogan’s family and members of his cabinet involved, Erdogan initiated a witch hunt against the movement. To make them allies against the movement, he released all those who have been convicted in Ergenekon and Balyoz trials. The witch hunt has been a state policy after the failed coup attempt of 15 July 2016. Thousands of judges and police officers -alongside tens of thousands of teachers, businessmen and academics- have been dismissed and arrested over their links with the movement.

It would now be interesting to make comparison between the Ergenekon & Balyoz trials and AKP Trials from the perspective of legal proceedings and detention conditions.

Comparison of the legal proceedings

1. First of all, there were hundreds of defendants who were detained in the Ergenekon & Balyoz Trials. In the AKP Trials, there are nearly 60.000 people are in jail while more than 150.000 were dismissed from their jobs.
2. During the court hearings of Ergenekon & Balyoz (Sledgehammer) cases, the media always had to use the expression “The Alleged Ergenekon Terror Organisation” all the way through the trial process in covering the news relating to the cases due to the court orders imposed. Whereas during the cases heard under the influence of the ruling party AKP , the media has been insistently using the expression of “FETÖ”(acronym of Fethullahist Terror Organization)  without “alleged” ; people are declared guilty even before they are tried with the use of many statements reflecting bias. Without similar court orders prohibiting such biased statement, the media -not only the Erdoganist media but also so-called independent newspapers such as Cumhuriyet and Sozcu- is instead taking the place of the courts and issuing pre-judgements and conviction without any judicial decision.
3. During the Ergenekon & Balyoz Trials, with no exception, all of the defendants had been addressed with a formal language and titles of respect. During the AKP Trials, however, a vulgar and coarse language is used at the court-rooms and the defendants are addressed with their first names only.
4. During the Ergenekon & Balyoz Trials, court hearings were held nearly every day of the week and these hearings were continued until late at night. The defendants’ requests and objections to detention were received initially every day and later once every week/every fortnight. For years, the courts had carefully followed this order of procedures. During the AKP Trials, however, the hearings are held for two or three days and then postponed to a date 3 or 4 months later. Then, another one or two hearings are held and the so-called verdicts are very hastily issued.
5. At the Ergenekon & Balyoz Trials, the defendants were given unlimited right to defend themselves and they were not interrupted or not told to cut short while they were defending themselves. The court members were listening to the defendants with great patience, even when they were talking about subjects that are not related to the accusation. This was why, people like Perinçek had been able to make their oral defence for more than two months. At the AKP Trials, however, oral defences of the defendants are interfered, frequently interrupted and the defendants are told to cut their talks short.
6. At the Ergenekon & Balyoz Trials, each defendant was represented by multiple lawyers. Meanwhile, representatives from Istanbul Bar and the Union of Bar Associations had been able to attend and observe all stages of the court hearings and, from time to time, they were allowed to make their own remarks. However, at the AKP Trials, leave aside the possibility of allowing the defendants to be represented by multiple lawyers, the statements are taken without the presence of a lawyer even when it is legally mandatory to take statements with the company of a lawyer, as hundreds of lawyers defending the accused persons are detained and this openly outlaw situation is nevertheless condoned by the authorities.
7. During the Ergenekon & Balyoz Trials, Ümit KOCASAKAL, Istanbul Bar President, had been present at every court hearing and witnessed the trials as observer, ignored his position as being an observer, incited and organised other lawyers at the courtroom against the court members. At the AKP Trials, however, despite the fact that appointing a lawyer is legally mandatory when a defendant requests so, Ümit KOCASAKAL has replied the requests for lawyer appointment with these words: “Am I that stupid to appoint lawyer to the suspects of Fetö! Of course, we did not appoint anyone for them, and we will not!” After using such statements under normal judicial circumstances, he should have been immediately disbarred let alone being allowed to remain as the head of a Bar.
8. During the Ergenekon & Balyoz Trials, interim rulings were issued about numerous defendants’ requests and defendants’ questions were promptly addressed and many communications were written to the respective institutions. For example, the Ergenekon court mentioned this in its reasoned judgement and stated that 7200 interim orders had been issued. However, at the AKP Trials, many requests and questions of the defendants are straightaway rejected, the judiciary is merely rushing to issue refusal decisions.
9. The sound recordings of the Ergenekon & Balyoz Trials were submitted to the defendants and their legal representatives in a very short time. While, at the AKP Trials, it takes months for the court recordings to reach the defendants.
10. At the Ergenkon & Balyoz Trials, no one interfered with people about what to wear, while there was no prohibition on the defendants appearing at court wearing smart suits. Indeed, a majority of the defendants attended the court hearings wearing very smart suits. At the AKP Trials, however, the defendants are prohibited to wear suit during the hearings. People keep silent on this unlawful prohibition; some even suggest that the defendants are obliged to wear one standard type of prison uniform.
11. During the Ergenekon & Balyoz Trials, the defendants were brought into the court-rooms from the back doors in service buses without hand-cuffed and the press were not allowed to take photos of the defendants. During the AKP Trials, however, all of the defendants are brought into the court-rooms hand-cuffed, they are specially exhibited in front of the press and frantic crowds of people.
12. At the Ergenekon & Balyoz Trials, the defendants were allowed to go into the tea-coffee rooms allocated specially for them outside the court-rooms while the hearings were being held. At the AKP Trials, it is not possible even to have a dream of such treatment.
13. At the Ergenekon & Balyoz Trials, the defendants were allowed to see and physically contact with their family members during the trial breaks. They were even allowed to celebrate their birthdays with birthday cakes, while the communication of the spectators with the defendants were not interrupted. During the AKP Trials, however, it is impossible for the defendants to enjoy such a humane treatment.
14. At the Ergenekon & Balyoz Trials, none of the judges feared from being dismissed from their judicial profession, and had never been subjected to a threat or pressure. At the AKP Trials, on the other hand, the trials are performed under the psychological pressure of the existence of thousands of judges and prosecutors dismissed from their profession and put under detention. The judges and prosecutors who “accidentally” issue verdicts that are not approved by the government are being immediately punished by being either suspended from duty or completely dismissed from judicial profession.
15. At the Ergenekon & Balyoz Trials, İlhan Cihaner, the Former, Chief Public Prosecutor had been detained and remained under detention for only 3 months, had never been hand-cuffed and transported to and from the court-rooms by aeroplane; had written a manifesto against his detention; had been, allowed to throw threats and use a harsh language at adalet.org –the website of the judges and prosecutors– and there were many judges and prosecutors who were allowed as well as willing to preach the judges of the trials about professional ethics. At the AKP Trials, however, on one side, there are thousands of judges/prosecutors who have been detained for more than a year now, who had been arrested by being hand-cuffed behind their backs as if they are murderers and are brought to the court-rooms in barred, windowless prison vehicles. And, on the other side, there are thousands of judges/prosecutors who, let alone writing something on the adalet.org website, opt to remain speechless about all these unlawful detentions and maltreatments, fear to death even to open their mouth, and have already forgotten the general principles of law and professional ethics.
16. At the Ergenekon & Balyoz Trials, monthly wages of civil servant defendants (soldier, police officer, teacher, etc.) had continued to be given and they even had a pay rise with a legal amendment. Termination of their civil service has not even been an issue. At the AKP Trials, however, let alone receiving wages, possessions and properties of all the defendants have been seized and the money in their bank accounts have been confiscated. All of the detained public officials, although there is not any final judgement placed against them, are dismissed from their profession.
17. During the Ergenekon & Balyoz Trials, there were “conscientious” politicians, who were reiterating at every platform that detention is an exceptional judicial measure and they are opposed to keeping defendants detained during the trials. At the AKP Trials, however, those politicians are not around anymore and even uttering such words is beyond any probability.
18. At the Ergenekon & Balyoz Trials, the nefarious act of harassing and attacking family members of the defendants had never been committed. Nobody from their families had been deprived of their liberty, nor lost their jobs. At the AKP Trials, however, family members of the accused persons are systematically taken hostage. The officials have blatantly and shamelessly said, “We could not find your husband/father and detained you instead. Let him come, so we will release you!” People have also lost their jobs just because their relatives are tried.
19. For the defendants of the Ergenekon & Balyoz cases, private rooms had been built where they can spend up to 24 hours together with their spouses once a month. At the AKP Trials, however, although the laws still allow this facility, defendants are arbitrarily prevented to come together with their spouses.
20. During the Ergenekon & Balyoz Trials, there has not been even a single case of arresting or detaining pregnant or postnatal women. At the AKP Trials, however, the atrocities and cruelties exerted on pregnant and postnatal women have peaked and are still incessantly being practised.
21. There was not even one claim of torture or ill-treatment during the Ergenekon & Balyoz Trials. This had also been confirmed by Celal Ülgen, the famous lawyer of these cases, by his following statement: “None of the defendants have been subjected to any physical torture.” Many defendants were praising the highly educated, kind and polite police officers and prison wardens many of whom now are arrested over their alleged links to Gulen Movement. At the AKP Trials, however, the number and intensity of torture claims are dramatically high according reports published by international organizations such as UN and Amnesty International. In their statements, defendants are talking about police officers, soldiers, or even retired military members who are torturing the detainees. Photos of the tortured people are exhibited on newspapers and the social media as if it is something to be proud of. Black transporter vehicles are moving around kidnapping individuals. Families cannot reach or receive any news from their missing loved ones. And not a single judicial authority can dare to examine these allegations out of fear.
22. At the Ergenekon & Balyoz Trials, there were lawyers who were emphasising to abide by only the law; who were constantly reminding the fundamental principles of the law and stressing the necessity of the law and order for everyone. At the AKP Trials, however, these lawyers are absent and they play deaf and blind in the face of unlawful acts committed.
23. During the Ergenekon & Balyoz Trials, at any platform, the lawyers had been able to define, reveal and discuss many subjects, such as the irregularities of the police searches, legal validity of digital evidence and intelligence procedures. At the AKP Trials, however, about the vileness of showing to download a messaging software app (ByLock) as criminal evidence, which has no legal ground at all, the same lawyers are playing three wise monkeys.
24. At the Ergenekon & Balyoz Trials, there were “sincere” bars and lawyers who regard detention of lawyers as violation of the right to defend and were showing solidarity for their few detained colleagues. At the AKP Trials, however, the same bars and lawyers remain silent about the detention of hundreds of lawyers. They regard the right to defence as sacred only when their client is of concern. The President of the Union of Bar Associations, on the other hand, attempts to be the government’s associates of crime and act as its spokesperson abroad, instead of investigating thousands of claims of violation and not taking even a single step to defend their unlawfully detained colleagues.

Comparison of the detention conditions

1. Detainees of the Ergenekon & Balyoz cases had been able to phone their family members once a week. However, detainees of the current cases are allowed to phone their families once in every fortnight.
2. During the Ergenekon & Balyoz Trials, detainees had been able to see their visitors at contact visits once every month. Now, however, many prisons allow contact visits only once in two months. Detainees of the Ergenekon & Balyoz Trials were able to be visited by a wide range of relatives and friends (spouse, mother, father, grandmother, grandfather, children, grandchildren, siblings, grandmother, grandfather, mother, father, daughter, son, brother and sister-in-laws, step children, children of grandchildren, nephews and nieces, uncles and aunts and their spouses, guardians, trustees and 3 friends names of whom they had determined). Detainees of the current cases, however, can be visited only by their spouses and first degree family members, guardians and trustees. For that reason, for example, Idil Eser of Amnesty International is not allowed to accept visitors except her lawyer since she has no first degree family members.
3. All of the detainees of the Balyoz case, and majority of the detainees of the Ergenekon case were staying with 6-7 other detainees in 21-person wards. While a small number of detainees, such as Mustafa Balbay, were staying in five-room cells with separate toilet, bathroom and a courtyard. In these cells, they were being able to go outside the courtyard whenever they wanted during the day. Detainees today, however, are forced to stay in either solitary confinement or in overcrowded wards with other detainees whose number is 2-3 times more than the capacity of the ward.
4. Detainees of the Ergenekon & Balyoz cases had been able to watch TVs with more than 40 channels, which included both opponents and supporters of the government. At present, however, many prisons do not allow the detainees to watch TV. In prisons where watching TV is allowed, the detainees are forced to watch only the pro-Government channels. Broadcasts of opponent TV channels are prevented.
5. Detainees of the Ergenekon & Balyoz cases had been able to listen to the radio in their cells. Now, however, prison administrations do not allow the detainees to listen to the radio at all.
6. Detainees of the Ergenekon & Balyoz cases had been able to get access to all kinds of periodicals and newspapers. At present, however, journals with opponent views such as Yeni Asya, Evrensel, and Birgün are not allowed inside the prisons.
7. Detainees of the Ergenekon & Balyoz cases had been able to obtain every book they wanted and to keep whichever book they wanted inside their cells. Many of them had turned their cells into a small library. For example, when Mustafa Balbay being transferred from Silivri Prison Number 5 to Prison Number 1, reportedly a small van was brought to the prison to exclusively carry his books.
8. Detainees of the Ergenekon & Balyoz cases had been able to conduct all kinds of cultural and art activities they wanted. For example, Hayrettin Ertekin, who said that he was once a gold jewellery maker, had created such a great amount of artworks from stone and plastic material that the walls of his cell had reportedly been covered with them. Mr. Ertekin’s handmade artworks were also overwhelmingly occupying the workshop of the prison. Let alone preventing Mr. Ertekin from practicing his art, the prison administration of the time was encouraging him to display his skills.
9. Similarly, the detainee Veli Küçük had been able to give small concerts every-so-often with his UD (a musical instrument) to the prison staff. At present, however, none of the prisons in Turkey allow the detainees to involve in any cultural or art activities, and many prisons do not allow to have musical instruments inside the wards.
10. İlker Başbuğ, the former army chief, joined Ahmet Hakan’s program on CNN after he was released from prison. When he was asked, “What were you doing at the New Year’s eve?” he said that they had been able to celebrate the New Year, they had even ordered a turkey from outside and humbly celebrated the New Year together.
11. Defendants of the Ergenekon & Balyoz cases had never reported any insulting or offending treatment from any of the prison staff. The staff members were always using titles of respect when addressing the detainees. Not even a single bill of complaint –neither about judicial nor about administrative services– was filed by the Ergenekon & Balyoz defendants while they were staying in prison, which is a clear evidence of the high standards provided at that time. Today, however, with the order of the Government, prisons are turned into simply “torture houses”. Many of the guardians today use even insulting and offensive words against the defendants, let alone being addressed with titles of respect.
12. Detainees of the Ergenekon & Balyoz cases had enjoyed the right to computer available at the computer room in prisons at certain times during the day. On these computers, some of the detainees were preparing their statements and defences, while others were writing books. The detainees were allowed to use USB memory sticks to save their documents. Many of those detainees had written many books by using those computers in prisons. Today, however, leave aside writing books, etc., the detainees are denied the right to use computers even for preparing their statements against the accusations they are facing with.
13. The representatives of human rights organisations or NGOs were allowed to visit the detainees of the Ergenekon & Balyoz whenever they wanted. Today, however, even the family members of the detainees are not permitted to visit the detainees and they are faced with severe restrictions.
14. Detainees of the Ergenekon & Balyoz cases were freely benefitting from the health facilities of the prisons. Whenever the diagnosis and/or treatment of a detainee’s illness was not possible in the health facility of the prison, they were sent to the hospitals within the referral chain. Today, however, when the illness of a detainee cannot be diagnosed and/or treated at the prison’s infirmary, they are either not referred to a hospital at all, or they are sent to a hospital only months later.
15. Detainees of the Ergenekon & Balyoz cases were granted 4 days of permission to attend the funerals of their relatives. For example, Mehmet Haberal, Doğan Yurdakul, Dursun Çiçek had attended funerals of their relatives for a duration of 4 days. They accepted commiserations and also spent the nights at the funeral house. Today, however, most of the detainees are denied the right to attend the funerals of their even very close relatives. While those given permission are granted only a very short time for such occasions. For example, Mümtazer Türköne was able to attend his mother’s funeral held on 19 August 2017 for only a few hours.