2-None of the cells possessed a toilet or running water

While many of my concerns about France remain still valid, I note nevertheless that important checks and balances have been quickly put in place in France by the judiciary, by both chambers of the French Parliament, as well as by the National Human Rights Institution and the Ombudsman, who are closely and effectively monitoring the use of administrative powers and formulate harsh criticisms and recommendations for improvement. I also note that the measures decided by the French government have been far more limited in scope compared to measures provided in the aforementioned Decree. I think that Turkey will also need to put mechanisms in place in order to ensure safeguards against abuse and to preserve separation of powers and the rule of law.

I urge the Turkish authorities to take account of these very serious concerns which are meant in a spirit of constructive dialogue with a view to avoiding future human rights violations during the very difficult period Turkey is going through at the moment.

Elements as clear indications of and puzzle stones in a strategy of the government, which aims at taking judiciary under its control.

Facts

[2.745 magistrates (out of around 15.000 of them) DANISTAY VE YARGITAYI DA KOYDUGUMUZDA 3000 GIBI were dismissed in the first 12 hours after the putsch, and arrest warrants were issued for all of them.][a majority of those judges and prosecutors is detained][ 48 judges of the State Council are dismissed, which is more than a half of them (those who would decide on appeals against decisions of administrative courts), as well as 140 of 150 judges of the Cassation Court][ [five judges, members of the HSYK Turkish High Council of Judiciary were dismissed, who alongside two members chosen by the country's President, represent the most important, second chamber of the HSYK which decides on promotions and allocations of judges and prosecutors, as well as on disciplinary responsibility and dismissal of them][the assets of 3049 judges and prosecutors who are under the investigation have been seized/FROZEN as of 28th July]

Some reported occurrences may serve as an example:

There is the way in which the investigation of the weapon transport was stopped?

• There are the amendments to the legal framework of the High Council of Judges and Prosecutors, some of which were prevented by decision of the Constitutional Court.

• There were numerous transfers of judges and prosecutors without their consent [these lists show interesting patterns like promotion of government backed judges etc.

• There were disciplinary procedures and suspensions of judges on the basis of their decisions

• There is the amendment of the Law on the Court of Cassation, by which most judges of the Court of Cassation lose their posts

• There was a very questionable policy of appointments of new judges in serious crime courts and the opening of special chambers in the Court of Cassation and the assignment of judges to these chambers.

• There was a change in the initial training and appointment requirements for judges with a very short period of training before possible appointment.

In line with these incidences since December 2013, the information of which we have received so far, we want to draw attention to similar indications, which have been asserted by European organizations:

WHY THE INDIPENDENT JUDICIARY DOES NOT EXIST IN TURKEY NOW

*Some lawyers which were defenders of detained magistrates have been detained afterwards [exp.]

1-Progress Report on Turkey, European Parliament Resolution, 10th June 2014, Commission Progress turkey (2014/2953/RSP),

2-Declaration of the Venice Commission of 20th June 2015 on Interference with Judicial Independence in Turkey, cases point to a pattern of interference with the independence of the judiciary in clear violation of European and universal standards:

1- Judicial decisions and requests from prosecutors were not executed in violation of the law; [example goreve aide.]

2-Prosecutors [and judges] were suddenly removed from cases prepared by them over a long period;

[The Venice Commission is particularly concerned that the High Council of judges and prosecutors took immediate and direct action against judges and prosecutors on account of their decisions in pending cases. This practice of the High Council contradicts basic principles of the rule of law.] To review the measures taken against the judges and prosecutors concerned;• To further revise the Law on the High Council of Judges and Prosecutors to reduce the influence of the executive power within the Council; • To outlaw any interference by the High Council of Judges and Prosecutors with pending cases; • To provide judges with legal and constitutional guarantees against transfer against their will, except in cases of reorganisation of the courts.

EX:[ The first group of cases concerns prosecutors Zekeriya Öz, Celal Kara, Mehmet Yüzgeç and Muammer Akkaş and judge Süleyman Karaçöl, who were dealing with investigations into high level corruption. Responsibility for these investigations was suddenly taken away from these prosecutors in December 2013 and their decisions, although they were legal and valid, were not executed. The four prosecutors and judge Karaçöl were transferred outside the normal procedure to other jurisdictions in early 2014, suspended from office by the High Council of Judges and Prosecutors (HSYK) in December 2014 and dismissed by the High Council on 12 May 2015.

3. Judges and prosecutors allegedly were arbitrarily transferred to other courts; as a punishment and intimidation

4- Judges were dismissed for decisions taken by them;

5-Alarmingly judges and prosecutors were even arrested for decisions taken by them.

The second group of cases concerns judges Metin Özçelik and Mustafa Başer, who granted on 25 April 2015 a request for the release of media representatives and police officers, who were detained on remand due to their involvement in the anti-corruption investigations. In their decisions the judges referred to the respective case law of the European Court of Human Rights. Not only were these release orders, although they were legal and valid, not implemented but, two days later, on 27

6-Dependent Judiciary: examples,

April 2015 the judges were suspended by the High Council of Judges and Prosecutors, which authorized their arrest. The President of the second chamber of the HSYK stated: “I apologize to the public. Our ruling was delayed due to the weekend.”

The third group of cases concerns prosecutors Süleyman Bağrıyanık, Ahmet Karaca, Aziz Takçi and Özcan Šišman, who gave orders in January 2014 to stop and search Syria-bound trucks allegedly carrying weapons. Following their decisions the prosecutors were transferred to other posts. In January 2015 they were suspended from office by the HSYK and in May 2015 the HSYK authorised post factum their arrest.

It should be stressed that measures against judges for their decisions can only be taken if there is sufficient proof that they did not act impartially but for improper reasons. On 15 February 2014 the law on the High Council of Judges and Prosecutors was amended, strengthening the powers of the Minister of Justice within the High Council. While many of these amendments were declared unconstitutional by a decision of the Constitutional Court of 10 April 2014, prior to this decision the Minister of Justice had already replaced key members of the administrative staff of the High Council and reassigned members of the Council to other chambers.[first chamber responsible for appointment was designed accordingly] These decisions were not reversed since the judgment of the Constitutional Court had no retroactive effect.

3-Comments of the CCJE Bureau of 12th June 2015, CCJEBU (2015)5, on the alleged major threats on the personal and institutional independence of the judiciary,

4-Report of the CCJE Situation Report on the judiciary and judges in the Council of Europe member States, updated version n° 2 (2015), which was welcomed by the Committee of Ministers

5-Comments by the CCJE Bureau following the request of AEAJ to provide opinion about certain aspects of the legislation in Turkey concerning judges and prosecutors, of 5th July 2016, CCJEBU( 2016)3.

To summarize: the Platform sees all these elements as clear indications of and puzzle stones in a strategy of the government, which aims at taking judiciary under its control.

An independent judiciary is a cornerstone in a democracy governed by the rule of law. It is not only in the interest of the Turkish people but also in the interest of all Council of Europe member states to reestablish this principle in Turkey. It is a task of the Council of Europe and its member states to try to stop this developments to abolish an independent judiciary and by this consequently to abolish democracy as such in Turkey.

SOME FACTS ABOUT TORTURE AND ILL-TREATMENT DURING THE PROCESS

We have received some appalling reports about the way judges and prosecutors are detained:

1-the way how they were detained, [

2-the conditions of the detention (no necessary facilities etc.)

3-no medical care [doctor control]

4-heart attacks of detained judges

5- No or reduced contact to family

6-no contact with lawyers

7-pressure on defense lawyers

8- No possibility for secrete conversation between defense lawyer and client

9- Pressure on the judges, who are in charge of the procedures against their colleagues,

10- No access to the files

11- Only a summary accusation “to be on a list” as official reason for being detained.

12.sorulan sorular

What to do

1-to establish, within the Parliamentary Assembly, an Independent Investigation Commission, composed by experts in Human Rights, on the situation of the independence of the Judiciary in Turkey, to gather the arguments of the Turkish authorities for their activities against the judiciary and the factual basis of these activities

2-to send high ranking observers to Turkey to watch the situation of the detained judges and prosecutors

3-dunya anayasa mahkemeleri birliklerine iki uyenin tutuklanmasi ve meslekten atilmasi ile ilgili e mail atilarak desteklerinin istenmesi

4-

Hatred crime

Judicial officials are openly showing same attitude [Separation of baby from mother etc.]

The legislative amendments of 2014 (Law No. 6524) allowed for the re-assertion of ministerial control of the HSYK, significantly eroding the institutional independence of the judiciary. The political context for these amendments was a December 2013 corruption crisis, involving the arrest and investigation of family members of government ministers, several businessmen and a mayor on charges of corruption. Amendments to the regulation on the judicial police were introduced in the wake of this crisis, obliging police officers involved in prosecutorial criminal investigations to inform administrative authorities about their investigation. A public statement by the HSYK criticizing these measures as weakening the independence of the judiciary provoked a hostile reaction from the government, including the Prime Minister 63 swiftly followed by legislation to amend the governance of the HSYK. The 2014 law gave the power to the Minister of Justice, as ex officio President of theHSYK, to determine the composition of the Council’s chambers.64 In turn, the chambers of the Council were accorded stronger powers—at the expense of the Plenary of the HSYK—to elect their chairpersons and other office holders. The power of the President over disciplinary investigations of judges was increased and, significantly, key positions within the HSYK—the Secretary General, assistant secretaries general, the Chairman of the Board of Inspectors and the Vice-Chairmen, Council inspectors, reporting judges, and administrative personnel—were terminated, thereby giving the Minister the power to make new appointments. affecting the transfer of judges and the allocation of judges to sensitive cases, and allowing channels for executive pressure on individual judges. This situation has seriousconsequences for the protection of human rights through the justice system.

Criminal charges and disciplinary action against judges and prosecutors Transfers of judges and prosecutors International standards establish that decisions on conditions of tenure, including the

assignment and transfer of judges, should be the responsibility of judicial authorities, in

order to protect against improper motives in such decisions, and ensure that transfers are not applied as disguised sanctions. Amongst other instruments, the International Bar Association’s Minimum Standards of Judicial Independence provide: “[t]he power to transfer a judge from one court to another shall be vested in a judicial authority and preferably shall be subject to the judge’s consent, such consent not to be unreasonably withheld.” The way in which the rotation system for judges and prosecutors is applied in Turkey raises concerns that it is applied as a means of executive control, rather than on the basis of objective criteria.101 In the Turkish system, transfers of judges and prosecutors between districts—graded as first, second or third degree for the purposes of career progression—and between courts, is a normal part of the judicial or prosecutorial career. As such, transfers normally occur with the judge’s consent. However, judges and prosecutors can be transferred from one post to another and from one city or district to another without their consent. The ICJ was told by many stakeholders, including lawyers, NGOs, and associations of judges, that, in practice, many judges who had not favored the Government in their decisions, have been transferred against their will. This was seen by many with whom the ICJ met as one of the main means of Government control of the judiciary. Figures for the number of involuntary transfers are unclear and disputed—estimates for recent transfers suggested to the ICJ during meetings in Turkey include from 7,000 to 3,500 forced transfers between the 2014 amendments.103 However, the Turkish government and the HSYK maintain that the majority of transfers have been voluntary and that all transfers have been carried out as part of ordinary judicial administration. The HSYK provided the ICJ with statistics to this effect. According to HSYK statistics, between June 2014 and June 2015 there were 17 decrees on transfer of judges and prosecutors, with a total number of transfers (whether voluntary or involuntary) of more than 6,500.104 In response to concerns raised by the Consultative Council of European Judges (CCJE), the Turkish government has estimated that there are about 6,000 applications by judges for transfers each year. The ICJ remains concerned that transfers are being applied as a hidden form of disciplinary sanction and as a means to marginalize judges and prosecutors seen as unsupportive of government interests or objectives. the ICJ considers that the lack of due process and effective remedy, in particular amid the competing political influences in the judiciary, leads to the abuse of the system for purposes of political and governmental influence. It is likely to have a severe chilling effect on independent judicial decision-making.

The establishment of criminal judgeships of the peace

The courts of criminal judgeships of peace (criminal judges of peace) were established in June 2014 106 and replaced the previous category of criminal courts of peace without retaining all their prerogatives. Under the current structure, criminal trials are conducted before the criminal courts of general jurisdiction, but functions related to supervision of the investigation are transferred to the criminal judgeships of peace. According to the Law on Criminal Procedure, these courts have the power to issue search, arrest and detention warrants. They are also entitled to judicially review the decisions of public prosecutors on non-prosecution. Furthermore, under article 10 of Law No. 5235, criminal judges of the peace can be accorded additional powers by law. For example, under Law No. 5651 (Law on the Regulation of the Publications on Internet and the Fight against Crimes Committed through These Publications) they have the power to decide on censorship and to review administrative decisions to block websites.

There is widespread concern within the Turkish legal community about the lack of independence of criminal judges of the peace. Their appointments were made by the first chamber of the HSYK following the 2014 reforms of the HSYK, and therefore with a composition highly favorable to the Government. Criminal judges of the peace are perceived to be closely allied to the government. It is notable that shortly following [Before 2014, this power belonged to the assize courts.][Their appointment, these judges authorized large-scale arrests of police officers allegedly involved in the Gülen movement. The new judges have also played an important role in enforcing highly problematic laws restricting freedom of speech, in particular on internet censorship and in prosecutions for “insulting the president”. Means of appeals from decisions of criminal judges of peace are very limited. Except in the highly exceptional circumstances in which a case can be referred to the Constitutional Court, the only appeal is to another criminal judge of peace of the same district. Effectively, therefore, there is a closed system of appeals within the criminal judgeships of the peace, with minimal recourse to the wider courts system. This situation is particularly worrying given the allegations of lack of independence of judges of these courts. The lack of appeal from the decisions of the criminal judges of peace calls into question the effectiveness of the remedies available within the national system for violations of human rights in the investigative process and puts in doubt the capacity of the legal system to provide the guarantees required by many of these rights, including the rights to liberty and to respect for the home and privacy.

At present there are three main associations of judges in Turkey: the Association of Judicial Unity, the Turkish Association of Judges and Prosecutors (YARSAV), and the Union of Judges. The ICJ met with all three associations during its visit to Turkey.

As noted above, the Association of Judicial Unity was first established as the Platform for Judicial Unity in 2014, in the run up to the October 2014 elections for members of the HSYK. Following the success of its candidates in these elections, it became the Association of Judicial Unity. It has been widely criticized as government-controlled, and is perceived by many commentators with whom the ICJ met as having been established for the purposes of strengthening government control of the judiciary. Representatives of the Association of Judicial Unity told the ICJ that, within eight months of their establishment they had registered 5,000 judges and prosecutors as members, making them, in record time, the judicial association with the highest number of members nationally. They emphasized that the aim of the association was to support judicial independence and the rule of law. Various other sources reported to the ICJ that the process of admitting members to the Association of Judicial Unity is problematic. It is reported that judges are approached by the Association and asked to submit an application to join and that, given the connections of the Association with the government, it is difficult for them to decline without facing adverse consequences for their careers. Reported to the ICJ by several stakeholders that judges or prosecutors who apply or agree to join the Association of Judicial Unity are required to resign from other judicial associations as a condition of membership. Allegations of government control of the Association Judicial Unity, and pressure on individual judges to join it, raise concerns that this can provide a channel for government influence on the judicial process. Furthermore, barriers to membership of other judicial associations are also highly problematic, as they are likely to further weaken the capacity of the judiciary to defend its independence. At an individual level, they are also likely to lead to arbitrary interference with the freedom of association of judges.

Lawyers, along with judges and prosecutors, are one of the pillars on which protection of the rule of law and access to justice against human rights violations rests. If the Justice system is to be effective, then lawyers must be free to carry out their professional duties independently, without interference from the Executive or from other powerful interest groups, Lawyers and NGOs in Turkey reported to the ICJ that other human rights defenders and lawyers, in particular those working in the south of the country, are also at risk of violence and receive threats. A number of lawyers are currently facing criminal charges, connected with their professional duties. The problem of undue influence by the executive or other political interests on the Turkish judiciary, while complex, deep-seated, and persisting over many decades, has recently reached new levels of gravity. Since 2014, legislative and practical measures further eroding the already compromised independence of judges, prosecutors and lawyers have made the rule of law increasingly fragile and unreliable.

KHK

1-Restrictions to the right of access to a lawyer, including the confidentiality of the client-lawyer relationship for persons in detention, which could affect the very substance of the right to a fair trial, and restrictions to visitation rights (Article 6);

3- A simplified administrative procedure to terminate the employment of any public employee (including workers), with no administrative appeal and no evidentiary requirements (Article 4);

4- Cancellation of rental leases between public bodies and persons considered to be a member of or in contact with a terrorist organization, a measure that is likely to affect not only the suspects but also their families (Article 8).

5-Another worrying feature of the Decree is that it foresees complete legal, administrative, criminal and financial impunity for administrative authorities acting within its framework (Article 9) and the fact that administrative courts will not have the power to stay the execution of any of these measures (Article 10), even if they consider that such measures are unlawful. These two provisions effectively remove the two main safeguards against the arbitrary application of the Decree.

Specific cases: