[OPINION] An Inventory of Injustices to Justice in Turkey

By LEVENT YILDIRIM

Only one day after the coup attempt on 15 July 2016, 2850 judges and prosecutors -one fifth of all the judiciary- were suspended by the High Council of Judges and Prosecutors (HSYK) and, ten days after, they were dismissed from their positions having been declared as members of an armed terrorist organisation and putschists. The dismissed judges and prosecutors lost their career, possessions, and professional, personal and family reputation. They have been exposed to persecution and isolation that cannot be seen even in the third world democracies. Together with the judges and prosecutors, their spouses, children and relatives have also been punished.

On 14 August 2016, the Vice President of the HSYK tweeted as “Following the treacherous coup attempt, the members of the judiciary who are proved to be the members of the armed terrorist organisation have been promptly dismissed from their positions.” Hence, the HSYK, although being an administrative board, put itself in the position of a court and declared these judges and prosecutors guilty in advance, moreover, did not even obtain their defence statements and dismissed them from the judicial profession pursuant to an emergency decree that violates the Constitution. The High Council nevertheless in its reasoned decree, mentioned of vague descriptions such as affiliation and coherence instead of presenting any hard evidence.

The HSYK sent written orders to all the courts to initiate prosecution against the judges and prosecutors whom the council had dismissed. In the minutes of prosecutions and search and confiscation orders, which were issued upon this order, it was stated that these judges and prosecutors were the members of an organisation called FETÖ. In this way, right from the beginning, the 2850 judges and prosecutors were as if convicted even before gathering any evidence, conducting any court hearing or taking any statements. Thus, all of the guarantees related to the crimes and punishments granted by the Constitution including the right against incrimination and the right to fair trial have been abolished and the law been suspended.

We can presume that the HSYK may not confront the government as it is an administrative council headed by the Minister of Justice and its members were elected from the list of the government controlled YBP and it was also making statements to the press in support of government. How could one explain the indifferent attitude of the Constitutional Court whose primary duty is to protect the constitution as the backbone of a country and hence the fundamental rights and freedoms?

The Turkish Constitutional Court has acquired the “distinctness” of being a court that accepts “social surrounding” information as hard evidence in a way that could only be seen in Nazi Germany. Despite its clear illegality both to the Constitution and the related laws, the Constitutional Court, based on this so-called “hard evidence”, dismissed the two of its members without even finding it necessary to conduct any investigation or to take any defences and also remained silent to their unlawful arrest and detention afterwards.

The Coup Accusation

Ankara Public Prosecutor Necip Cem İşçimen played the initial role in issuing the custody orders for one-fifth of the judges and prosecutors of the country on the same day of the coup. Talking to a program on NTV, he answered a question of a correspondent from Istanbul saying that he can hear the bombings are still continuing at the time. Quite inexplicably, “it just so happens” that the public prosecutor went to the courthouse towards the morning and he let slip that they had some lists at their hand and by not even feeling the need to wait for the end of the coup attempt –which was at the time still not fully quashed– and to learn who the perpetrators were. He straightaway started his work by issuing arrest warrants for his colleagues including the members of the Constitutional Court, some members of the HSYK and supreme court judges, which were based only on the list of dismissals prepared by the HSYK in a trice.

As understood from both this statement of the Ankara Prosecutor and the tweets of the Vice President of the HSYK, the judges and prosecutors were first accused of taking part in the coup attempt. The judges and prosecutors, supposed to be under the protection of the Constitution and the Law No. 2802, were not accused of membership of a terrorist organisation but of participating in the coup attempt on the basis of false claim that they were caught red handed.

Under Article 88 of the Law No. 2802, “Except for the crimes caught red handed falling under the authority of the assize criminal courts, judges and prosecutors who are claimed to have committed an offence may not be arrested or be subjected to house or body search or an investigation.” The Turkish Code of Criminal Procedures (CCP) describes the red handedness as follows: “A crime that is being momentarily committed or a crime that has been just committed; or a crime committed by the individual arrested without warrant by the law enforcement authorities, by the victim or by others after he has been chased immediately after the crime has been committed; or a crime committed by the individual who was arrested without a warrant with the movable goods or evidence which indicate that a crime has been recently committed.” (Article 2).

Under the pretext of the crime of coup attempt, a constitutional crime has been committed by violating the principle of the separation of powers in the Constitution and abolishing the security of tenure for the judges and prosecutors and violating the regulations of the Law No. 2802. It is evident that all these judges and prosecutors were at their lodgements at the time when the coup started and that there is no single claim that they had any contact with any of the soldiers who were claimed to have taken part in the coup. Through the investigations launched while the coup was still pending, it was purported as if nearly 3000 judges and prosecutors in all around Turkey were all caught red handed in the act of attempting the coup at the same time, without determining how these judges and prosecutors had participated in the coup, without showing any concrete evidence of their involvement in the coup as primary or secondary offenders.

Further, within the context of the investigation unlawfully and unduly launched, it is a sheer disregard of the law and a criminal act for the criminal peace judgeships to issue warrants of confiscation and international travel ban by merely repeating the same statements used in the investigation reports of the prosecutors.

In an interview to a journalist, the Vice President of the HSYK confessed the arbitrariness of this situation by stating that they were not able to find any evidence suggesting that these judges and prosecutors had participated in the coup and that they are relying on the latter statements of the confessors only for the membership of a terrorist organisation.

After the coup attempt, some previously-made-ready profiling lists have been put into operation and thousands of jurists have been dismissed without the right to defence and later been arrested and detained by the unauthorised investigation authorities and criminal peace judgeships.

Accusation of Membership of a Terrorist Organisation

Article 159 of the Turkish Constitution stipulates how the judges and prosecutors shall be investigated should they commit offences “in the course of their duty” or “as a result of their duty”. Accordingly, the investigation of offences allegedly committed by the judges and prosecutors, in connection with, or, in the course of, their duties, shall only be carried out upon the proposal of the related chamber and with the permission of the President of the High Council. This provision of the Constitution is the requisite of “the tenure of judges.”

The investigations of the judges and prosecutors, currently about 5000, have not been initiated in accordance with the Article 159 of the Constitution and the requirements stipulated in the article are not fulfilled. By virtue of the hierarchy of norms, it is not possible to have a statutory act which contradicts the provisions of the Constitution. Thus, the provisions of Article 161 of the Turkish Code of Criminal Procedures may not be applied for the judges and prosecutors.

Even though some lawyers claim that prosecutors may carry out criminal proceedings for their colleagues in accordance with the authority given by Article 161/8 of the Turkish Penal Code (TCK), this interpretation has no legal ground at all. In addition to the unconstitutionality issue pointed out above, it has also been confirmed by the Court of Cassation in the context of Cihaner case that Article 161/8 of the Turkish Penal Code is a provision that can only be applied to civil servants and it shall therefore not be applicable to judges and prosecutors.

The crime of the “membership of an armed terrorist organisation” that is imputed to the detained or investigated judges and prosecutors is a “continuous” crime. The concepts of “continuous” and “successive” crimes are important in the determination of the place and date of the crime. In continuous crimes, the place and the moment of the crime committed is the place and moment the continuous act has just ended. The literal meaning of “continuous” is persisting, continuing and ongoing. Continuous crime is the crime whose consequences continue for some time. Membership of an armed terrorist organisation is also a continuous crime. Therefore, it is a crime that could be committed “in the course of” or “in connection with” the professional duties of judges and prosecutors. If the membership of an armed terrorist organisation is a continuous crime, which it is, it should also be a crime which can and indeed ought to be committed “in the course of” or “in connection with” the profession. A continuous crime cannot be divided in this respect. Claiming that the attributed crime is a “personal crime” because they have been committed not during the working hours but outside the working hours constitutes a clear contradiction to the principles of logic and the normal flow of events.

The provision of Article 89 of the Law on Judges and Prosecutors numbered 2802, entitled as “prosecution decision” and “preliminary investigation”, is a legal regulation issued in compliance with Article 159/9 of the Constitution. While Article 93 of the same law, titled as “prosecution and investigation in personal offenses” states that “the investigations about the personal crimes of judges and prosecutors shall be carried out by the Chief Public Prosecutor of the criminal assize court which is nearest to the criminal assize court the individual falls within its jurisdiction and the final investigation shall be carried out by the criminal assize court of that jurisdiction.” Meanwhile, Article 7 of the Emergency Decree No. 680 published in the Official Gazette of 06/01/2017 numbered 29940 has changed Article 93/1 of the Law No. 2802 as follows: “The authority to investigate and prosecute the personal crimes committed by the judges and prosecutors is vested in the Provincial Chief Public Prosecutor and the criminal assize court located under the Regional Court of Appeal in the place whereby the respective persons perform their duties.”

Therefore, within the framework of the legal regulations explained above, it is understood in relation to the judges and prosecutors that:

The investigations relating to the offenses committed by judges and prosecutors “during” and “in connection with” their judicial duties may only be launched by the permission of the 3^rdChamber of the HSYK and with the approval of the President of the HSYK. The investigations may only be conducted by an inspector or another senior member of the judiciary assigned by the Inspecting Board of the HSYK. If, at the end of the investigation, the HSYK issues a “permission to prosecute”, the public prosecutor of the nearest criminal assize court at the judiciary district where the judge or prosecutor is working files an indictment with the request of opening a “final investigation.” After gathering the evidence, if “the nearest criminal assize court” decides to open “final investigation”, the required legal procedures for the final investigation shall be conducted by the Court of Cassation for judges or prosecutors who are at the first degree of professional seniority and for other judges and prosecutors by the criminal assize court in their judicial area.
For “personal crimes”, it is not required for the HSYK to give permission and approval to open the investigation; the authority to open the investigation for personal offenses of the judges or prosecutors is directly vested in the chief public prosecutor of the regional criminal court in the judicial area where the judge or prosecutor is working and the authority for prosecution is given to the criminal assize court in that district.

As explained above, it is not possible to consider the crime of “membership of an armed terrorist organisation” as a “personal crime.” Accepting the membership of an armed terrorist organisation as a continuous crime but acknowledging at the same time that the judges and prosecutors did not commit this crime “while in office” is nothing more than undermining or ridiculing the logic and common sense. Since, by definition and according to simple logic, it is necessary for a continuous crime also to be committed while in office. Article 159 of the Constitution and Article 89 of the Law No. 2802 must be applied to the judges and prosecutors who are accused of this offense. And only after the HSYK’s decision and approval for starting an investigation has been attained, the Inspecting Chamber of the HSYK must carry out the investigation and, upon this, if the HSYK gives permission for prosecution, then an indictment must be filed in the nearest criminal court with the request of “issuing a decision to open the final investigation”. If the criminal assize court decides to “launch the final investigation”, then the prosecution procedures (final investigation) shall be conducted either at the Court of Cassation or at the criminal assize court depending on the seniority of the judge or the prosecutor.

Criminal procedures in relation to Judges Metin Özcelik and Mustafa Baser for “membership of an armed terrorist organisation”, who had issued decisions about the requests of recusation and release– have been conducted in accordance with this procedure described. Their trials were held at the Court of Cassation. Again, the criminal procedures in respect of 54 other judges and prosecutors earlier had also been carried out accordingly. Since then, no substantial changes are made to the laws. Hence, not even being able to maintain the same standard of practices for the same offenses charged against the judges and prosecutors is the proof of nothing other than “improvidence” and “arbitrariness”.

The indictments that started to appear only a year after the detentions are also the proof of this perversion in many ways. It is claimed in the indictments that the thousands of dismissed and detained judges and prosecutors had taken part in the judicial structure of the so-called FETO armed terrorist organisation. Even only this claim in the indictment reveals that the alleged crime is asserted in connection with the judicial duty of the judges and prosecutors.

Further, it is asserted in these mostly pre-printed indictments that the “judicial power” is used as a weapon for some investigations and prosecutions, even though these assertions are of a generalised and not an individualised manner. Thus, it is claimed that the crime has been committed as a result of the judicial duty. It is further asserted in the indictments, which give the impression that they have been duplicated by photocopying, that the suspects had played effective roles in the HSYKelections. As it is known, only the judges and prosecutors who are in the profession can cast vote in the HSYK elections. The claims included in the indictments related to these elections reveal that the charged offense is not a “personal crime” but a crime related to the “judicial duty.”

Although around 2500 judges and prosecutors are detained for the membership of a terrorist organisation, it can be seen from the issued indictments that the elements of this crime are never constituted, despite the passage of over one year for gathering evidence. According to the plain meaning of the law and the settled case law, having an organic link with the organisation is required for the “leadership or membership of an armed terrorist organisation in terms of continuity, diversity and intensity of the actions and activities. Under the criteria developed by the Criminal Chamber of the Court of Cassation, it is necessary to set forth concretely where, when, by whom and for which purposes the organisation was formed.

Where, when, and through whom the accused judges and prosecutors had established their claimed organic links with the so-called “terrorist organisation” have not been able to be explained. This link with the mentioned “terrorist organisation” may not be established by referring to general explanations and abstract sentences, as it has been stated in the indictments. There is no hard evidence presented so far in this regard. Apart from this, it has not been possible to reveal concretely the positions of these judges and prosecutors, if any, within the hierarchy of the so-called “terrorist organisation”. While there are at least seven to eight different criteria that the respective criminal chamber requires for the crime of “membership of a terrorist organisation” to constitute, how these criteria are met has not been discussed in the indictments.

Unlawful Searches

The legal problem here relates to the concept of “the organised crime” and actually concerns “all” of the unlawful acts. Primarily, it is important to question who decides how a group becomes a terrorist organisation. It can be admitted that the respective council or councils of a state can widen the list of terrorist organisations by putting forward some justifications and supporting them with some legal arguments and existing judicial decisions. The actual problem with these cases is that “is the Gulen movement an armed terrorist organisation” and, if that is so, which public organ decided, when and on what grounds it was decided that it is so and whether or not this decision is acceptable in the national and international arena. The main point which the jurists need to pay attention in an environment where daily political interests and opportunist friendship can change every day is the requirements of the law not the policies or actions of the politicians.

Prof. Ersan Şen draws attention in this regard to the following: “One of the most important problems of the judicial system is the fact that the leadership or a membership of a criminal or terrorist organisation are made subject to arrest upon “being caught red-handed”, searching, confiscating and detaining, as they are considered continuous crimes and therefore their results are continuing. Things have gone so extreme in practice that by having a separate discussion of the existence of the criminal or terrorist organisation and merely deriving from that assumption and even though there is no crime or attempt of crime committed as part of the activities of the organisation, it is observed that the arrests and detentions are carried out and the legal positions of the suspects are determined through the notion of ‘being caught red-handed’.”

Article 88 of the Law No. 2802 provides specific provisions for the searches conducted on judges and prosecutors. “Save for the crimes being caught red-handed falling under the jurisdiction of criminal assize courts, the judges and prosecutors who are claimed to have committed an offense may not be arrested or subjected to house or body search or an investigation.” But the Ministry of Justice is immediately informed of the situation. If it will be understood after a while that there is in fact no such thing as a crime caught red-handed, then there will be unlawfully conducted procedures and the persons responsible from this unlawfulness.

Considering the above explanations, it may be argued that the court decisions issued on the judges and prosecutors are unlawful. Subjecting the judges and prosecutors to house, office and car search and seizing their possessions with an unlawfully issued court order, even though the requirements of Article 88 of the Law No. 2802 did not exist is clearly unlawful. Searching the dwelling of the judges and prosecutors based on an illegally issued order is a violation of the protection of the home and the right to privacy. As it is clear from Article 217/2 of the Code of Criminal Procedure (CCP), only those evidence that are obtained legally may be used during the investigation and the trial. The evidence that are not obtained in conformity with the law or obtained by twisting the law shall be treated as illegally obtained evidence. There is no exemption for this rule in the Code. Thus, the evidence obtained unlawfully may not be accepted as evidence, no matter if is to the advantage or disadvantage to the suspect or the accused. Continuing an investigation launched in an unlawful manner with evidence obtained again in an unlawful manner is itself unlawful.

In the course of confiscating the computers during the searches, the peremptory norms of the CCP have been violated and the “image” copying process was almost never carried out. Article 134/3 of the CCP clearly states that “While seizing of computers or computer records, all the data included in the system shall be copied” and Article 134/4 states that “a copy of this copied data shall be produced and given to the suspect or to his representative and this exchange shall be recorded and signed.” Despite all these provisions, it is clearly unlawful during the searches conducted in accordance with unlawfully issued search warrants not to take copies of the digital goods at the place of confiscation and not to give the copies to the suspects with a report, hence leaving the evidence open for tampering.

Arbitrary Arrest Warrants

Despite the regulations in Articles 138/1-2 of the Constitution, stating that “Judges shall be independent in the discharge of their duties; they shall give judgment in accordance with the Constitution, laws, and their personal conviction conforming to the law. No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions”, the magnitude of the latest unlawful practices are enough to cast shadow on the lawfulness of the arrest warrants.

To give a few true examples:

The judges-on-duty examining the investigation documents are often faced with pressures by being warned as “You will arrest him, won’t you sir,” “If you will not issue an arrest warrant, you will also be declared a member of Fetö”.
The representatives who governs all the personnel, assignment and promotion affairs of the judges and prosecutors put themselves in the place of the court and made statements claiming that the dismissed judges and prosecutors are decisively proved to be guilty and declared this on their social media accounts in a way that all the serving judges and prosecutors can learn and be affected by this.
HSYK has issued decisions in line with these views that were published on twitter.
Investigations have been filed on the judges who issued release orders in respect of the alleged offenses and their judicial duties have been suspended and some of them have even been detained.
The judges, under pressure, tend to decide not in accordance with the requirements of the law and their free conscience but under the fear of, “If I will not arrest him, they will imprison me and declare me as a member of that organisation.”

In violation of Articles 36 and 37 of the Constitution, which guarantee the principle of natural justice and the right to a fair trial, the lists of judges on duty are constantly intruded and particular judges are assigned for specific cases, persons or files, and the authority of the judges in the criminal peace judgeship who issue arrest warrants are arbitrarily changed. These are all actions that completely annihilate the independence and impartiality of the judiciary.

To indicate the severity of the situation, it may suffice to give an example which was also appeared on the social media as to how a judge came up with a decision to reject the objection filed by a defendant regarding the continuation of his detention. The following are the ground for rejecting a release order:

That there is no other evidence requires a technical examination,
That the suspect may interfere with the evidence that is likely to be gathered,
That the risk of coup still exists,
That there may be some inaccessible evidence,
That the suspect may influence the persons who gave evidence against him.

Yet these are not anecdotes of a humour. These are the reasons for the continuation of detention issued by a judge in 2017 in Turkey.

In order to issue an arrest warrant, amongst others, there must be facts that indicate “a strong suspicion of a crime”. In a rule of law, suspicion can only be described with evidence. The stronger the evidence is, the more intense the suspicion becomes. If the evidence at hand are few in number and/or weak, then we talk about a simple suspicion. If the evidence at hand are not few and/or reasonable or strong, then we talk about intense suspicion. The suspicion that only consists of estimates and presumptions and is not based on certain events and indicative evidence is not enough to start an investigation; if such a suspicion is deemed sufficient, then arbitrariness cannot be prevented. If the possibility for a defendant to be convicted is stronger than his acquital, it means there is sufficient amount of evidence. The CCP requires the existence of sufficient evidence to file an indictment. Indeed, under Article 170/2 of the CCP, if the gathered evidence at the end of investigation phase constitutes sufficient suspicion that a crime has been committed, the public prosecutor shall then file an indictment. Looking at the evidence at hand, if it is most likely that the defendant is going to be convicted, then it is assumed that a strong suspicion exists.

Considering the revealed indictments, one could see that the evidence submitted do not constitute “a strong suspicion of a crime” and do not even have “a sufficient suspicion for the crime,” which is required to file a public prosecution. Thus, both the detention orders and the following refusals of release under these conditions are completely unlawful. Detention is a temporary measure of protection. If other protection measures will be able to serve the purpose, then the measure of detention must not be taken.

Assets Confiscation

Right at the start of the investigations filed against the judges and prosecutors, assets of all of the dismissed judges and prosecutors were frozen. This is against the CCP and the Law No. 2802 not to mention the fundamental principles of the law and universal human rights. Apart from declaring the judges and prosecutors as “terrorists” just within a day before any court hearing and later detaining and dismissing them; their families and children left behind have also been punished in this manner.

It must be emphasized that under Article 128 of the CCP, the following requirements must be met in order to seize a person’s assets including cash, property, rights and credits, etc.:

There must be “strong grounds of suspicion showing that the crime under investigation or prosecution has been committed and that these assets have been obtained from this crime”,
Obtaining a report from the institutions like the Banking Regulation and Supervision Agency, the Capital Markets Board and the Financial Crimes Investigation Board,
The confiscation order must be taken with the unanimous decision of the Criminal Assize Court.

Despite all these clear regulations, it is unlawful to confiscate the assets which are obviously not obtained from the proceeds of crime and to punish their family members by breaching the principle of individual criminal responsibility.

Unlawful Treatments Targeting Families

By unlawfully detaining and dismissing the judges and prosecutors, their partners and children have also been punished just because they are the families of these individuals. After Judge Metin Özçelik was arrested, his wife, who had been working as a doctor at a university hospital, was fired from and his 4 year-old son were thrown out of the nursery he was attending.

The families who have been deprived of the wages and savings in the bank accounts and who have been thrown out of the lodgements they were dwelling are simply left in destitute. By also freezing the goods and properties such as car and house by which the families could rely on to meet the financial needs, they are prevented from liquidating these assets in order to meet their needs. What is more, spouses of many judges and prosecutors have also been dismissed from their jobs, while those who managed to continue working have faced severe mobbing at their workplaces.

With the publication of emergency decrees even before the dismissal decrees became final, the judges and prosecutors as well as their families are forced to leave the lodgements they were living in and they are left without any administrative remedy they could apply. The families were threatened and warned that those who did not evacuate the lodgements on time would face serious administrative sanctions.