Information regarding Decision of the Turkish Constitutional Court on dismissal of two of its members

There is no need to prove the ties between members and any terrorist organization, terror action, or the coup attempt to dismiss, it is enough to prove the tie between members and groups, structures, foundations, that were accepted acting against the national security by the National Security Council.

On the other hand, according to the Article 3 (of the decree with the force of law -Kanun Hükmünde Kararname- KHK/667-) to dismiss (justices), proving that they are members or connected to this kind of group is not required, but provingmembers that they have contact with the groups, structures, foundations is enough.

Finally, the article (of the decree with the force of law -Kanun Hükmünde Kararname- KHK/667-) does not require to prove the tie between members and groups, structures, foundations, which operate against national security of the state, determined by the National Security Council or terrorist organizations. For establishment of such a tie “evaluation” of the general assembly of the constitutional court is sufficient. The evaluation here means a belief/conviction reached by a simple majority of the general assembly. Undoubtedly this belief consists of only an evaluation over whether it is appropriate to remain in profession or not regardless of presence or absence of criminal responsibility.

Article 3 of the the decree with the force of law (Kanun Hükmünde Kararname, KHK/667), is not required to ground/ base a particular type of evidence in order to reach “the belief/conviction”. Which matters will form the basis of the belief/conviction are left to the discretion of simple majority of general assembly. The important thing is here while reaching a conviction to avoid from arbitrariness.

The written defenses of members, Alparslan Arslan and Erdal Tercan, were taken in order to take into consideration in the evaluation of general assembly of the constitutional court. Said members stated that they have no link with FETO/PYD; after submission of concrete information and documents related to alleged crimes against them they demand an opportunity for a new defense and some witnesses whose names are given to be listened.

Constitutional Court members will make an evaluation under the Article 3 of the decree with the force of law (Kanun Hükmünde Kararname, KHK/667), and this will be whether they are the members are of terrorist organizations or a structure, entity or groups that carry out activities that accepted by the National Security Council that are against national security or assessed to be in connected or in contact with them. As mentioned above, for this assessment, belief of majority of members’ is sufficient to reach a final decision.

The features of the fact mentioned above and the information about Justice Alparslan Altan and Justice Erdal Tercan’s family affiliations within their social circle as well as the common perception of their colleagues over the years were assessed and under the the Article 3 of the decree with the force of law (“Kanun Hükmünde Kararname”, KHK/667), it is evaluated that they cannot stay at the positions with being linked to the organization.

After the evaluation of these members (Justice Alparslan Altan and Justice Erdal Tercan), it is clear that the trust and respect to the judiciary will be harmed, if they keep performing their duties at the Constitutional Court which is responsible for protecting the democratic system and fundamental rights and freedoms.

The decision was made unanimously.It includes 5 headlines. The most important things are the followings:The court says the emergence law does not require evidence based assessment so belief is sufficient to reach a final decision.There is no evidence mentioned in the decision.There is nothing particular regarding the dismissed members. No event, no proof, no assessment, no evidence.The decision contains more than 10 pages just explaining the law and the attempted coup. So assessment of laws and facts. There is no fact regarding the members. No subsumption.In the conclusion part the rationale is limited to: “the law says that the belief of the plenary of the court is enough. We believe unanimously they have ties with the FETO.“

This provokes questions:

On which evidence your belief is based ?

How did you find or believe there is a tie between FETO and these court members?

Which acts of them made you believe they are close to the FETO?

Questions for accused judges and prosecutors

A- Judges and prosecutors are detained over the coup attempt but there are just 2 questions on it.

B- There is a question about the election of the High Council of judges. Why?

…] this terror organization nested in the state should be cleaned off the state structure urgently and within the framework of law.

The most effective force of the state against the forenamed terrorist organization is its legitimacy deriving from acting lawfully as it is so against all terrorist organizations. For this reason, it is essential that the investigations and prosecutions are conducted within the framework of the principles of fair trial in order to ensure permanent success in combat against terrorism. […]

The principles of fair trial which the coup attempters would ignore if they were to succeed should be fully applied to the people alleged to members of the terrorist organization that attempted the coup. This is the sine qua non of the state of law.” The presumption of innocence is considered by the European Court of Human Rights, not only as a principle of criminal justice, but also as a “concrete and real” defendant’s right to be presumed innocent until the moment of procedural instance described by paragraph 2, article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. A case procedure is based on the presumption of innocence and the interpretation of doubt in favour of the defendant, protects the suspect, meanwhile the officials authorized to conduct the preliminary investigation, are warned against voicing any allegations. In essence the presumption of innocence means that person charged with a criminal offence must be treated and considered as not having committed an offence until found guilty with a definitive decision by an independent and impartial tribunal!

4-Turkey: Treatment of detainees ( and what about the presumption of innocence?

Excerpt from the news published today in the daily cumhuriyet as follows:

1. Lawyer-client meetings are restricted to be once a week and recorded. And in some penitentiaries, the meetings are made in the presence of two officials.

2. Arrested persons are not permitted to have family visitors until the end of the state of emergence.

3. Mailing and phone call are highly restricted.

4.Newspapers are prohibited.

5. Patient inmates’ rights to medical treatment are being violated due to bureaucratic obstacles. They do not access to health care once needed.

6. The lawyers who insisted on a meeting with their clients first waited to see them until 7:00pm then soldiers came and dragged the lawyers on the ground and at the end thrown them over a field.

8. The inmates are not provided with enough space and beds. They are not able to sleep.

9. Forensic medicine can give a report that 80 years old can stay in prison despite his serious illnesses.

The link: http://www.cumhuriyet.com.tr/m/haber/turkiye/580500/Cezaevleri_yangin_yeri.html

DIFFERENT RECRUITMENT TO JUDGES

The IBAHRI delegation also heard that particularly well-connected judges have been promoted more quickly than others. IBAHRI delegation heard from the majority ofthose interviewed that it is extremely common for Cambodian judges to be ‘instructed’ by members of the executive as to the judgment to be given in a particular case. Many held the view that, where a powerful politician had an interest in one side of a case prevailing, they would always actively pressure the judge to decide in favour of that side and that side would then invariably prevail. The delegation also heard that disciplinary procedures have been misused by the authorities to punish judges who do not obey directions as to the content of their judgments (see further below). Allother interviewees, however, told the delegation that the exertion of political influence over judicial decision-making in cases of interest to the government is so common as to be the norm. they are often used as a form of political retribution against a judge for ruling against the interests or orders of the government, and not as a means by which to ensure judges abide by professional codes of conduct and ethics. transfers to provincial courts are considered to be an effective form of punishment. judges who professed allegiance to the CPP were more likely to advance in their careers than those who did not profess such an allegiance or who professed allegiance to the CNRP or another party.148 The delegation heard from several interviewees that most serving judges belong to the CPP and that there exists active discrimination in the judiciary against those with differing political views.

Concerns were heard that the oral interview following the written examination takes place before a board where five of the seven members are officials from the Ministry of Justice. Concerns were also raised about the mobility system for prosecutors and judges, based on a rotation between different geographical areas classified in various categories. The Special Rapporteur, for instance, was informed of a case where a prosecutor with more than 15 years of experience in criminal cases was transferred ex officio to work as a family judge in another region. This example, which does not seem to be an isolated one, shows that the transfer and rotation system should be improved and made more effective, fair, transparent and coherent in order to avoid possible misuses in its implementation. A transfer and rotation process that is public, based on objective criteria and, as a general rule, initiated by request would improve trust in the judicial system, especially with regard to those judges and prosecutors dealing with sensitive cases, and would contribute to making them more accountable in their activities. There is also the perception that the appointment and transfer system can be used, depending on the case, as a punishment or reward mechanism. The Special Rapporteur has been informed that during an eight-month period beginning 25 October 2010—the date the new members of the High Council of Judges and Prosecutors took office—a total of 3,049 judges and prosecutors changed duty stations, constituting one third of the judges on duty. It was reported that many were transferred ex officio. In this process, judges and prosecutors who were members of judicial professional organizations seem to have been particularly penalized, with little attention being paid to very important issues, such as the right to family integrity. The impression gathered by the Special Rapporteur in this respect is that a State-centred mentality is rather prevalent in the Turkish judiciary, as the approach is often to favour or protect in the trial what are perceived to be the interests of the State.

NEW JUDICIARY in “NEW TURKEY” AFTER MAJOR CORRUPTION SCANDAL

“NEWLY” DESIGNED TURKISH JUDICIARY AFTER MAJOR CORRUPTION SCANDAL SEM TURKISH JUDGES IN

Newly Designed Judiciary

Arrests of Judges and Prosecutors

New HSYK, 1.Chamber changed, new appointment policy clear pattern, pro goverment increase, the others decreases..

EYLÜL: Savcılar İsmail Uçar, İrfan Fidan ve Fuzuli Aydoğan, 25 Aralık soruşturması kapsamında aralarında Necmettin Bilal Erdoğan ve işadamlarının bulunduğu 96 kişi hakkında takipsizlik kararı verdi.18 Ekim: 17 Aralık’a takipsizlik kararı verildi.

Government Created Special Criminal Punishment System

Government Established Professional Judicial Organization

Association of Judicial Unity

New Internet Regulation

Situation in Media: Arrests of Journalists

National Intelligence Agency and Situation in Police Force

Election Results

YARGI NASIL DIZAYN EDILDI?

Sekillendirme tepeden/yukaridan basliyor.[patterns]

Hukumete darbe iddialari yayiliyor. PROPAGANDA TEKNIKLERI

Kanun degisiklikleri yapiliyor. PROPAGANDA DEVAM

HSYK devreye giriyor, mahkemeler kuruluyor, tayinler oluyor, yetkiler degisiyor, dosyalar devrediliyor. Kanun degisikliklerinden sonraki her asama birbirine bagli ancak, mustemirler kitabin tam ortasi. Asil dizayn mustemirlerle yapiliyor gibi geldi bana.