Current situation of judiciary in turkey

“96. The assessment in the context of Code Nr 667 Statutory Decree is not similar to the criminal or disciplinary investigation which enquiries concrete action. The assessment simply indicates a process to form an opinion whether Constitutional Court members have a connection with any group or not. For this reason relevant members will be assessed according to available information and documents.

97. The assessment of the General Assembly of Constitutional Court about members Alparslan ALTAN and Erdal TERCAN in the context of Code Nr 667 Statutory Decree article 3 will be related to whether mentioned members have any link with the Parallel State Structure in the "membership", "affiliation", "junction" or "contact" form. For this assessment it is sufficient to form a conviction at the majority of the General Assembly.

98. Considering, the above expressed features of the present case, social network information indicates their relation to the aforementioned structure and common impression of Constitutional Court members formed during the time, it is assessed by the General Assembly that members Alparslan ALTAN and Erdal TERCAN have connection with “the structure” in the context of Code Nr 667 Statutory Decree article 3. For this reason it is assessed that it is not proper to let them stay in their profession.”

Those two members (Alparslan Altan and Prof. Dr. Erdal Tezcan) were well known for their democratic stance and pro freedom of expression and right to a fair trial decisions. Alparslan Altan casted dissenting vote in favour of arrested journalist Mehmet Baransu⁴⁷. In a suit of nullity they were both used dissenting vote against “criminal justice of peace” which were described as a project court to carry out mass purging⁴⁸. This is the best example how high courts became puppet of executive power. They sacrificed the reliability and independency of judiciary to satisfy personal ambition of President Erdogan. How can people trust to such a biased supreme court?

Accepted by the Parliament before the coup attempt but yet unpublished the 6723 Act, entered into force after it is published at the Official Gazette on 23.07.2016⁴⁹ and the positions of all Court of Cassation and Council of State members were terminated. According to 6723 Code Nr Act, High Council of Judges and Prosecutors elected new members of Council of State⁵⁰ and The Court of Cassation⁵¹ and those who are not elected again are appointed to the first instance courts ⁵². But detained and arrested high court members are not appointed to first instance courts. There was no information about their statue and positions at the official web site of High Council of Judges and Prosecutors.
On 24.8.2016, High Council of Judges and Prosecutors (HSYK) dismissed 2.847 judges and prosecutors from their profession⁵³, according to Code Nr 667 Statutory Decree article 3. Previously suspended 140 Court of Cassation Members and 48 Council of State Members were dismissed as a rapporteur judges. In its decision (E: 2016/426)⁵⁴ HSYK declared that after Code Nr 6723 Act issued at the Official Gazette on 23.7.2016, all high court memberships are dropped and those who are not appointed again became first instance court judges and entered into the jurisdiction of HSYK.

HSYK doesn’t indicate any personal crime about 2.847 dismissed judges and prosecutors but using collective accusations and collective punishment system which is contrary to the Turkish Constitution article 38.

Here are the grounds that HSYK put forward for dismissal:

1-In its dismissal decision, HSYK claims that some judges, prosecutors and some security officials breached some procedural rules during the investigation and trial period of some cases. For example, 17 and 25 December 2013 Corruption Investigation which is involving four cabinet member and their son and also close circle and some family members of President Erdogan; an investigation against Iranian-backed the Salaam Tawheed and Jerusalem Army; the case of Ergenekon And Balyoz Military Coup Plans; the search process of the Turkish National Intelligence Service (MIT) vehicles which were carrying arsenal to Syria. Even if all those allegations are true, it cannot justify the dismissal of 2.847 judges and prosecutors because great majority of these judges haven’t been participated in these cases. Therefore it is not possible to criminalize them without their personal wrong doing. In fact it is not possible to punish those judges and prosecutors who are participated in these process before their investigations completed by the HSYK. According to Turkish Constitution article 15 and 38, no one shall be considered guilty until proven guilty in a court of law and criminal responsibility shall be personal.

3- In its decision page 60 HSYK claims that dismissed judges and prosecutors were taking direction from outsiders. Here is another example of mass accusation and mass execution. HSYK must precisely put forward all its evidences and reveal that in which case, which judge or prosecutor took order from outside. Certainly there is no single proof against 2847 judges and prosecutor. In a state governed by the rule of law, it is not possible to dismiss any public officer by such and abstract, absurd and baseless allegations. This allegation can only be considered as an example of libel. On the other hand, HSYK not only dismissed first instance court judges but also former high court members as well. Because of heavy backlog high court members have to deal with hundreds of case in a single day and they are not informed before the meeting. How it can be possible to get order from outside when they are dealing with hundreds of case in a very limited time.

4-The reasons, stated at the final part “VERDICT / GEREĞİ DÜŞÜNÜLDÜ” of the decision are completely unlawful, illogical and very arbitrary. Here are the dismissal reasons mentioned in this part of the HSYK decision:

“…activities of judges during their traineeship period in Justice Academy; informations about their in-service training, the participation of foreign language education or sending abroad; informations regarding the appointment to the specially authorized prosecution or courts; informations concerning the appointment to The Board of Inspectors as an inspector or administrator; informations relating the assignment to administrative duties as a head of the department or general manager; information and documents in the personnel files; sharing in their social media accounts; complaints, denouncement and investigation files against judges and prosecutors conveyed to the High Council of Judges and Prosecutors (HSYK) and the decisions made about these files; researches conducted at the close circle of judges and their social environmental information; the judgements they gave in the cases related to FETÖ/PDY; encrypted communication programs they used at their mobile phones and their communication records; disciplinary actions taken by the HSYK according to informations given by Directorate General of Security; information and documents obtained from the Chief Public Prosecutor of Ankara; the essence of investigation initiated by the Chief Public Prosecutor of Ankara and allegations about judges, detention and arrestment warrants about them, query and interrogation records of judges and prosecutors taken under the investigation; statements of the confessors”.

These allegations are also perfect example of mass accusation and mass punishment system. The authority to appoint someone to certain court or administrative position, or sending someone for post graduate education to abroad is belong to Ministry of Justice or HSYK itself and it doesn’t constitute a crime. Those authorities continue to appoint someone to that positions and continue to send someone to have an education to abroad. All those appointments are perfectly legal and in fact it is used very arbitrarily today. If there are some malpractice or violations of the rules, only those who are participated in these appointments can be held responsible. There is no specific violation of the rules mentioned in the HSYK decision. All those vague and unclear allegations cannot be used as a legal base for 2.847 dismissal.

It is possible to make a complaint about judges and prosecutors and later starting disciplinary proceedings against them everywhere in the world. But it does not make them guilty automatically. The disciplinary proceedings must be carried out in accordance with law and if there are convincing concrete proofs against some judges, relevant disciplinary punishment should be imposed only on them, not on 2.847 innocent judges. On the other hand, taking disciplinary actions against judges by the HSYK, according to informations given by Directorate General of Security is a confession of crime itself. In a democratic states it is not conceivable to dismiss any public officer just by police reports. Besides HSYK doesn’t share those informations with anyone. In a constitutional state, security forces take orders from the judiciary not judiciary from policeman.

Similarly the judgements given in the cases related to FETÖ/PDY cannot be used as a reason for dismissal. Because court decisions are subjected to appeal proceedings and if there are some legally wrong decisions it is possible to correct them during the high court judicial review. HSYK does not again specify, in which cases they have identified what kind of malpractices and how many of 2.847 judges held responsible for this allegation.

In HSYK decision, social media sharing of judges; researches conducted at the close circle of judges and their social environmental information; encrypted communication programs they used at their mobile phones and their communication records are pointed out as reasons for dismissal. Communication programs such as twitter, facebook, whatsapp, viber, tango, kakao talk etc. are free and open to everyone. I am sure they are downloaded and still being used by all HSYK members. In addition, searching on social media sharing of judges and prosecutors and investigating crime factors in their private lives is a constitutional crime itself. Privacy and protection of private life, freedom of communication, freedom of thought and opinion and freedom of expression and dissemination of thought are enshrined in our constitution.

In Turkish Constitution “Article 20, everyone has the right to demand respect for his/her private and family life. Privacy of private or family life shall not be violated. …

Everyone has the right to request the protection of his/her personal data. This right includes being informed of, having access to and requesting the correction and deletion of his/her personal data, and to be informed whether these are used in consistency with envisaged objectives. Personal data can be processed only in cases envisaged by law or by the person’s explicit consent.

Article 22- Everyone has the freedom of communication. Privacy of communication is fundamental. Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law in cases where delay is prejudicial, again on the above-mentioned grounds, communication shall not be impeded nor its privacy be violated. …

Article 25- Everyone has the freedom of thought and opinion. No one shall be compelled to reveal his/her thoughts and opinions for any reason or purpose; nor shall anyone be blamed or accused because of his/her thoughts and opinions.

Article 26- Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities. …

Article 38- No one shall be considered guilty until proven guilty in a court of law. … Findings obtained through illegal methods shall not be considered evidence. Criminal responsibility shall be personal.”

Spying on private life and communications and social environments of judges and prosecutors and dismissing them because of using some constitutional rights such as freedom of communication, freedom of opinion and freedom of expression is explicit violation of aforementioned constitutional principles and ECHR. All informations gathered without court decision are illegal and cannot be considered evidence and cannot be used to put the blame on anyone. Moreover, there is no single example in HSYK decision that which correspondences of which judges constitute a crime and how these informations are used to dismiss thousands of irrelevant jurists.

An investigation initiated by the Chief Public Prosecutor of Ankara, allegations about judges, detention and arrestment warrants about them, query and interrogation records of judges and prosecutors taken under the investigation cannot be considered legal ground to dismiss judges.

Leave aside tenure of judges, it is not possible to charge and dismiss any public official just because an investigation initiated against him. Because no one can be held guilty until it is proven by a court ruling. This HSYK decision is clear violence of the presumption of innocence.

According to ECHR article 6 “2- Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3- Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him….”

HSYK has breached all rules above. The principle of the presumption of innocence is violated, judges and prosecutors are not informed about accusations against them, the right to defence and legal assistance is not provided, to examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf is not possible. Owing to the atmosphere of fear and oppression no lawyer dares to defend prisoners and detainees. Many lawyers are arrested because they defended suspects⁵⁵. According to the article 90 of Turkish Constitution, all HSYK members are committed crime by dismissing judges in accordance with 667 Statutory Decree which is totally contradict to ECHR.

Later on 31.08.2016, HSYK dismissed 543 more judges and prosecutors with same reasons, according to 667 Statutory Decree article 3⁵⁶. In total the number of dismissed judges and prosecutors reached to 3.495⁵⁷. Those judges and prosecutors and their families lost their income. Besides, Criminal Justice of Peace taking a cautionary judgement on the properties of detained and arrested judges and they cannot use their own belongings too⁵⁸.

These decisions and measures are contradict to our Constitution. According to Turkish Constitution article 35, everyone has the right to own and inherit property and these rights may be limited by law only in view of public interest. Nowadays judges working as a Criminal Justice of Peace feel themselves free to infringe every legal and humane principles to satisfy President Erdogan.

According to Code Nr 667 Statutory Decree, the first Turkish Association of Judges “Yargiclar ve Savcilar Birligi (YARSAV)” is closed by the accusation of being connected with FETO/PDY Terror Organisation on 23.07.2016. Properties and assets of the Association are confiscated. The Chairman of the association Murat Arslan suspended⁵⁹ and later dismissed on 01.09.2016 from his profession by Code Nr. 672 Statutory Decree⁶⁰. YARSAV was the only Turkish member of international judicial organisation MEDEL (Magistrats européens pour la démocratie et les libertés). Its priority was to support democracy and rule of law and to enhance professional standards of judges in Turkey.

In its decision HSYK claimed that FETÖ/PDY members was infiltrated into YARSAV and in this context 774 out of 1604 YARSAV members were suspended and finally dismissed⁶¹. Apparently YARSAV membership is considered as a disposal criteria by the HSYK and the government. If some FETÖ/PDY members are leaked into YARSAV, why the government does not content with just elimination of some members of the association but closing it completely?

According to Turkish Constitution article 33 “Everyone has the right to form associations, or become a member of an association. …Associations may be dissolved or suspended from activity by the decision of a judge in cases prescribed by law.” None of the constitutional rules are taking seriously by HSYK. They are acting as if there is no rules and legislations and no binding international agreements in Turkey.

Amnesty International has gathered credible evidence that detainees in Turkey are being subjected to beatings and torture, including rape, in official and unofficial detention centres in the country. The organization called for independent monitors to be given immediate access to detainees in all facilities in the wake of the coup attempt, which include police headquarters, sports centres and courthouses⁶². A lot of proofs of torture and ill treatment are circulating in internet web sites⁶³. Human Rights Foundation (HRF) urges UN special procedures mandate holders to organize a joint fact-finding mission to investigate the situation of thousands of people detained during the ongoing government purge. HRF says, serious human rights violations taking place in Turkey following failed coup, including the arbitrary deprivation of liberty, an unprecedented crackdown on the media, the elimination of the independence of the judiciary, and gross cases of torture, including rape⁶⁴. A member of Turkey’s Human Rights Association (İHD), lawyer Gülseren Yoleri, has said in her interview on 13.9.2016, there is torture in Turkey’s detention centers and that torture devices that were used during coup periods in the past have been put to use again during emergency rule. She has also cited elder prisoners report that new prisoners taken into custody as a member of FETÖ/Parallel State Structure are tortured severely⁶⁵. According to information provided by the Turkey Prison Studies Centre, after the date of 15.7.2016 reverse handcuffs, truncheon beatings and naked search during the transfer almost become routinized practices. Even ex-convicts began to be bothered by the noise of torture applied to those arrested after the coup attempt⁶⁶. A diabetic teacher Gökhan Açıkkollu taken into custody by the allegation of FETÖ/PDY Organisation membership, died in police custody 13 days later because he was not allowed to take his medicine and deprived from medical treatment⁶⁷. Agitated angry mobs are attempted to lynch some detained judges and prosecutors⁶⁸. It is nearly impossible for detainees to see their lawyers even their families. Because of heavy pressure on judges they are trying to take refuge abroad. A 50 years old Turkish judge has illegally moved to the Chios island by boat among other refugees and requested asylum from Greece⁶⁹. Public prosecutor Ekrem Beyaztaş was captured by soldiers when he was trying to cross Syrian border⁷⁰. Unfortunately currently Turkey became more dangerous than Syria for independent judges and prosecutors.

One of the mayors of ruling AK Party, demanded to cut ears of detained FETÖ Organisation members to recognise them easily if they might be released later⁷¹. Minister of Economy Nihat Zeybekçi said in public speech that, “We will punish FETÖ Organisation members so severly that they will beg us to be killed, it will be worse than hanging.”⁷² The United Nations has warned Turkey that wide-ranging purges and arrests following a failed coup “go beyond what can be justified” and may violate international law. Turkey is invoking Article 4 of the International Covenant on Civil and Political Rights (ICCPR), which allows it to temporarily relax laws on public freedoms. The UN group, comprised of 19 special rapporteurs and three working groups, said the government was using “wide and indiscriminate administrative powers that affect core human rights. The invocation of Article 4 is lawful only if there is a threat to the life of the nation, a condition that arguably is not met in this case,” they noted⁷³. Turkey has also invoked a similar clause enabling it to violate obligations under the European Convention on Human Rights.

Alongside of profiling activities of National Intelligence Service, some government organisations encouraging people to inform suspected ones at their web pages⁷⁴, some public unions are forced to give information about public officials⁷⁵, some public institutions trying to collect information through questionnaire form⁷⁶. One of the minister confessed that they will carry out mass purging, according to informations collected through telephone taps, social media sharing and messages; names of private schools, dormitory and teaching institution that public officials and their children attended to; the names of unions, organisations, associations, foundations and other NGOs they are affiliated to and names of financial institutions they made some transactions⁷⁷. None of those activities and relationship are illegal according to current law. President Erdogan called citizens to inform anyone without mercy, even if they are close relatives and friends, if they have somehow connection with Gülen Movement⁷⁸. This is typical characteristic of oppressive regimes such as former USSR, East Germany, Syria, Iraq, Iran and North Korea.