Hsyk: first dismiss the judges/prosecutors, then search for evidence against them

HSYK: first dismiss the judges/prosecutors, then search for evidence against them

Deputy Chairman of the Supreme Board of Judges and Prosecutors (HSYK) Mehmet Yılmaz has denied a previously made statement and said confessor prosecutors and judges will not be allowed return to their posts in the Justice Ministry.

“No worries. The HSYK will not return anyone who avails themselves of the Effective Repentance Law to duty again. Our board is determined on this issue,” said Yılmaz, speaking to columnist Sevilay Yükselir.

Thousands of judges and prosecutors have been suspended by the HSYK while many have been detained or arrested on the grounds that they have links to the Gülen movement, which is accused by the Turkish government of masterminding a failed coup attempt on July 15.

Speaking to the Anadolu news agency on Oct. 21, Yılmaz had said: “At the general assembly, we will discuss keeping those [suspended] judges and prosecutors in their jobs whose confessions [related to the Gülen movement] are helpful and important.”

Recalling his previous statement, Yılmaz said: “I made that statement merely to encourage confessions, and it was very successful. There were no confessions at that time, but after I issued the statement, many were obtained. By means of more than 200 confessors we gathered evidence on the FETÖ membership of 2,400 judges and prosecutors.”

HSYK’s Yılmaz admits it was a trick, confessors not to return to judicial posts

HSYK Başkanvekili: Niyetim itirafçılığı teşvik etmekti!

Comments:

It is clearly understood from the interview that

1. At time of the mass arrests of judges there was no evidence. They just started to try to find something after the arrests. It seems they still don’t have anything.

2. Criminal prosecution have been conducted by the HSYK not by the prosecution office.

3. HSYK is weighing the evidence not the courts.

4. The deputy head of HSYK lied to everybody to produce evidence; he intentionally manipulated not only the judges but also the public.

5. In the last paragraph of the article he says there is no link between the judges and the attempted coup.

The ENCJ unites the national institutions in the Member States of the European Union which are independent of the executive and legislature, and which are responsible for the support of the Judiciaries in the independent delivery of justice. It aims to improve cooperation between, and good mutual understanding amongst, the Councils for the Judiciary and the members of the Judiciary of the European Union (or candidate) Member States.

It is a condition of membership, and for the status of observer, that institutions are independent of the executive and legislature and ensure the final responsibility for the support of the judiciary in the independent delivery of justice.

The ENCJ became concerned that the procedures adopted by the High Council for Judges and Prosecutors of Turkey (HSYK) indicated that this condition was no longer satisfied.

The General Assembly of the European Network of Councils for the Judiciary (ENCJ) gathered in The Hague on 8thDecember 2016 to discuss and decide on the position of the HSYK in the Association.

The ENCJ has been following developments in the judiciary in Turkey since 2014 and has expressed its concern both in its correspondence with the HSYK and publicly in the Declaration of the Hague (June 2015), the Declaration of Warsaw (June 2016) and more recently after the mass-suspension of judges and prosecutors and again following their dismissal.

The HSYK has been given ample opportunity to explain their actions. They took the opportunity to do so by sending its resolution of the 31st August and by explaining the situation at the extraordinary General Assembly in The Hague on 8th December 2016.

The ENCJ acknowledges the huge impact and subsequent national trauma caused by the events on 15th July 2016. Those responsible should be made accountable through an open, fair and impartial judicial process conforming with international standards.

It is no part of the function of the ENCJ to take a position on the internal political situation in Turkey. However, taking into account the failure of the HSYK to satisfy the ENCJ that its standards have been complied with, the statements of the HSYK, as well as information from other sources including the reports and statements of the European Parliament, the European Commission, the Human Rights Commissioner of the Council of Europe and Human Rights Watch and the Venice Commission, the ENCJ decided that the actions and decisions of the HSYK, and therefore the HSYK as an institution cannot be seen to be in compliance with European Standards for Councils for the Judiciary. Therefore, the HSYK does not currently comply with the ENCJ Statutes and is no longer an institution which is independent of the executive and legislature ensuring the final responsibility for the support of the judiciary in the independent delivery of justice.

The General Assembly accordingly resolved to suspend, with no Council voting against, the observer status of the HSYK. Therefore, the HSYK is, for the time being, excluded from participation in ENCJ activities. The ENCJ is however open to staying in contact with the HSYK and is prepared to offer its assistance and guidance in setting out and compliance with the European Standards for Councils for the Judiciary.

Done in The Hague 8 December 2016

Message from Turkey: minutes from 01/06/2014, taken by chief prosecutor Huseyin Baş (now detained)

Preliminary remark: CHIEF PROSECUTOR HUSEYIN BAS IS IN CELL NOW!

NOTE: the Investigation mentioned in the following minutes refer to those conducted regarding the harbor corruption in which the name of current Prime Minister Binali Yıldırım’s wife´s sister’s husband is also involved.

Comment: HERE IS THE EVIDENCE FOR THE STRONG POLITICAL PRESSURE OF EXECUTIVES (RULING ERDOGAN’S AKP GOVERNMENT) ON JUDICIARY. AS OF TODAY, THE PUBLIC PROSECUTOR, RECORDING THIS MINUTE, IS HELD UNDER ARREST.

THE UNDERSECRETARY OF MINISTRY OF JUSTICE CALLS THE PROVINCE OF İZMİR CHIEF PUBLIC PROSECUTOR…

The minutes, recorded by the Province of İzmir Chief Public Prosecutor, Hüseyin Baş, on January 7, 2014 and attached to the official letter, denouncing the conversation between the Undersecretary of Ministry of Justice and Hüseyin Baş and submitted on January 10, 2014, reveals the following information:

“ Within the context of Investigation Document No. 2011/12445, conducted by our Chief Public Prosecutors’ Office on the issue of offences of forming a criminal organization with the intention of securing benefit, conducting a criminal organization, having a membership in a criminal organization, bribery, corruption in tenders, extortion, qualified plunder; an investigation was carried on by the help of taking precautionary measures such as supervising of communication and following with technical tools, like taking a photo or video recording as the articles 135 and 140 of Criminal Procedure Code No.5271 require. Afterwards, following the evaluation of expert reports, the catching of the suspects warrants and search warrants were issused by the competent court on January 6, 2014 and then those warrants were submitted to the Province of İzmir Security General Directorate for execution of them after work.

When I was at home, my phone, 05305275135, was called by the secretary of Kenan İpek, Undersecretary of Ministry of Justice, from his office, and the secretary told me that Kenan İpek wants to have a phone call with me at 19:38 on January 6, 2104. Firstly, he inquired after my health and then asked about the process of the investigation, conducted. I informed him about it shortly. Upon this, he demanded me to cease the investigation process urgently and also change the public prosecutor, carrying out the investigation and added that he was waiting in his office in order that I let him know the conclusion. Although I explain him in detail that there is no undue or unlawful procedure in the investigation proceedings in law and in practice, he insisted that I cease ongoing investigation, change the public prosecutor, carrying out the investigation and also retake the court verdicts (search and catching warrants) from the law enforcement agencies aftermath of a 4-minute-phone call. Telling again that he is waiting for the reply, he turned off the phone.

Later at 22:31, calling me again, Undersecretary of the Ministry of Justice asked what I had done. In response, I kindly explained him in detail that, all the proceedings were in line with the principles of law and there was no need for interference to the investigation process. Then, adressing me, he told that: “At this time of the night, go ahead and change that prosecutor, carrying out the investigation, cease the investigation and cancel all the proceedings up to now, otherwise, you bear a loss of disobedience.

I refused to put his demand, looking like an order, into practice , due to all the proceedings with regard to the conduction of investigation were in accordance with the law and in full respect for the fundemental rights.

This minute, representing the conversation between Kenan İpek and me, taking place at 19:38 and 22:31 on January 6, 2014, was recorded and signed by myself . 07.01.2014”

http://www.sozcu.com.tr/2014/gundem/iste-bekir-bozdagin-tutanagi-458093/ https://t24.com.tr/haber/huseyin-bas-sunun-bunun-degil-ben-cumhuriyetin-savcisiyim,249177

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There are lots of discussions going on further steps that must be followed after the rejection of appeals of over 3000 judges and prosecutors by the HCJP:

1- Go to the Council of State (Danistay)

2- (If # 1 denied) Go to the Constitutional Court for the individual complaint

3- (If #1, and #2 do not work) Go to the ECHR

1) The council of state already decided on some judges’ cases. The council held that it has no jurisdiction over these cases on the basis of the fact that the dismissals are not the one regulated by the Law on Judges and Prosecutors, this one is ” extraordinary measure”. It ruled that the duty belongs to the Ankara Administrative Court. In the same holding, the council implied that these dismissals can not be challenged before the courts. So it is quite possible that the Ankara Court will also dismiss the cases due to inadmissibility set forth by the Council of State.

2) The law on Individual application before the Constitutional Court states that judicial review of individual applications shall not be made on matters prevented by the constitution. And article 59 of the constitution states that the decisions of the HSYK, other than dismissal from the profession, shall not be subject to judicial review.

Which means basically that if we characterize the dismissal as ” extraordinary measure”,as the state of council already did, not the one which shall be brought before the court, the constitutional court will refuse the cases because of inadmissiblity.

3)So there might be the possibility to apply to ECtHR directly without exhausting of domestic remedies. Having in mind the recent case ECtHR 56511/16 Zeynep MERCAN contre la Turquie it might be useful if the ECtHR’s attention on the altered situation would be called by amicus curiae briefs.

However – even it might be just a loss of time – one must advise the appellants to go first to the administrative court, and then if the court finds the cases inadmissible to appeal to the constitutional court and ECHR simultaneously.

The case of Yarsav (s. www.al-monitor.com)

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AKP targets judicial independence in latest post-coup takedown

by Sibel Hürtaş*

( Source: http://www.al-monitor.com/pulse/en/originals/2016/11/turkey-silenced-critical-judges.html Turkish and English Version)

The Association of Judges and Prosecutors (YARSAV), the first nongovernmental organization of judiciary members in Turkey, was dissolved and its chairman landed behind bars after the July 15 coup attempt. Following the closure order, part of the first emergency-rule decree issued soon after the putsch, the Justice Ministry sent letters of the international bodies to which YARSAV was a member, asking them to admit as its replacement a group with ties to the government. The move is yet another example of Ankara’s tactic of disabling critical institutions and replacing them with pro-government ones.

YARSAV’s case is especially ironic in light of how the association was founded and functioned. It was created in 2006, at a time when followers of Fethullah Gulen, the accused mastermind of the putsch, were increasingly taking hold of senior positions in the judiciary, taking advantage of the then-close alliance between Gulen and the ruling Justice and Development Party (AKP). The 500 founding judges and prosecutors sought to get organized precisely against this trend of partisan staffing. YARSAV filed numerous lawsuits against appointments by the Justice Ministry, secured the cancelation of several regulations and guidelines on the grounds that they facilitated partisan staffing, and ensured that job interviews were recorded on camera. It was among the first vocal critics of mass probes and trials targeting mainly soldiers but also intellectuals and politicians over an alleged plot to unseat the government that the AKP would later admit was a setup by Gulenist police and judicial members to defang the military.

YARSAV was also among the first to speak up internationally about the threats to judicial independence in Turkey, and was soon admitted to the International Association of Judges and the European Magistrates for Democracy and Liberty (MEDEL). That was when its troubles started. YARSAV faced investigations and lawsuits seeking its closure, while founding Chairman Omer Faruk Eminagaoglu was removed from his post at the Court of Appeals and demoted to a provincial office amid judicial and disciplinary probes. Other founders came under similar pressures.

In short, YARSAV paid dearly for standing up against the Gulenist entrenchment in the judiciary, but ended up being closed for links with what Ankara now calls the Fethullah Gulen Terror Organization (FETO). In remarks to Al-Monitor, Eminagaoglu conceded that Gulenist jurists might have “infiltrated” YARSAV, apparently after Gulen and the AKP fell out in 2013, but stressed that the wholesale closure of the association spoke of other motives.

“A fourth of the judges and prosecutors expelled after the coup are said to be YARSAV members. Like all other institutions, YARSAV might have been infiltrated too,” he said, pointing out that many Gulenists used to conceal their affiliation. “Yet, at other public and private institutions, the measures have targeted the infiltrators [individually], and the same had to be applied to YARSAV. Otherwise, one is supposed to shut down the Justice Ministry as well. … The closure of YARSAV is a move that goes beyond the purpose of the struggle against FETO,” he added.

The closure was followed by the arrest of Murat Arslan, YARSAV’s chairman, in late October. The reasons justifying the arrest include a charge that he had downloaded the ByLock messaging application, which Gulenists allegedly used to communicate. In his testimony to prosecutors, obtained by Al-Monitor, Arslan denied ever using the application. In another mind-boggling detail, no backup was made of the original software and data found on Arslan’s mobile phone, as the procedure usually goes in such cases. Asked whether he was aware that Gulenists were involved in illegal activities, Arslan told the prosecutor, “I’ve been aware that this is an illegal entity since the day YARSAV was established. I’ve been involved in active efforts against them since the Ergenekon case.”

Then there is the testimony of a secret witness who alleges that Arslan was the judiciary’s “imam,” or the top Gulenist operative in this realm. Lawyer Selcuk Kozagacli, the head of the Contemporary Jurists Association who was present at Arslan’s interrogation, told the press that the claims of the secret witness contained no specifics of dates and places. “This is called calumniation,” he said. “It can never serve as a basis for any criminal proceeding or an arrest.”

Arslan, who was in Great Britain on the day of the putsch and returned home two days later, was imprisoned pending trial after the court found him a flight risk. In the meantime, he lost his position as rapporteur at the Constitutional Court, and his family was ordered to leave the public lodgings where they resided.

YARSAV was the only Turkish group that the International Association of Judges and MEDEL had admitted. Its closure also meant an end to its active international efforts to explain how Ankara sought to control the judiciary and draw attention to the dangers of partisan staffing.

Following YARSAV’s closure, the Justice Ministry wrote to the International Association of Judges, informing them of the move and requesting the admission of the pro-government Platform for Unity in the Judiciary as a replacement, Eminagaoglu told Al-Monitor. “The International Association of Judges rejected the request, saying it admits only independent organizations,” he said. “The move was an attempt to ensure that groups praising the government and not those criticizing it are represented in international organizations. It’s what the government always does — dissolving opponent bodies and filling their places with pro-government ones. This is true not only for the judiciary, but also for the media and public service.”

Sibel Hurtas is an award-winning Turkish journalist who focuses on human rights and judicial and legal affairs. Her career includes 15 years as a reporter for the national newspapers Evrensel, Taraf, Sabah and HaberTurk and the ANKA news agency. She won the Metin Goktepe Journalism Award and the Musa Anter Journalism Award in 2004, and the Turkish Journalists Association’s Merit Award in 2005. In 2013, she published a book on the murders of Christians in Turkey. Her articles on minorities and unresolved killings appear on the Faili Belli human rights blog.

Avrupa Yargıç Derneklerinden Türk kamuoyuna açık mektup / Open letter of the European Judges Associations to the Turkish Society

COULD IT BE A CRIME TO USE BYLOCK?

Turkish judicial and administrative authorities have been trying to establish a perception through ByLock which is an encrypted messaging application for smart phone, and can be downloaded in google play and used to be downloaded in apple store as well. Although Bylock, which is a legal app, can be downloaded via apple store and google play, they reflects it as an illegal application in order to strengthen their thesis and their claims. From their perspective using or downloading ByLock is considered a crime which means a member of armed terrorist organization behind the attempted coup and so it was accepted and applied as the most important evidence of membership of terrorist organization.

The statement of Mr. Mehmet Yılmaz who is Vice President of HSYK was published in some newspapers.1 He mentioned in his statement about the smart phone application which is called ByLock, have been used by the Gülenist for encrypted conversation. He briefly said that “We call on them to benefit from the Repentance Law. The number of people who want to benefit from the law has increased, particularly after the emergence of lists of people using ByLock. I believe it will increase further from now on,”

Labor and Social Security Minister Mehmet Müezzinoğlu also told reporters in Bursa on Tuesday that the Turkish Intelligence Agency has determined the identity of nearly half the 180,000 users of ByLock,. It is claimed by the Justice and Development Party (AKP) that plotters of the July 15 coup attempt used it for communicating.2

According to the prosecutors, members of HSYK and the government officials, smart phone application ByLock is the main communication tool among members of the Gülen Movement. As I said before from their perspective using or downloading ByLock is considered a crime which means a member of armed terrorist organization behind the attempted coup and so it was accepted and applied as the most important evidence of membership of terrorist organization. Therefore so many people have been arrested just because they used ByLock application.

However the truth is so different.

1) As far as I can see from the statements comes from the judicial and administrative authorities and some news from variety of newspapers such as Guardian3 The Turkish Intelligence Agency has been working on it for a long time. So the list of names that allegedly used or downloaded ByLock made by intelligence services. But Intelligence reports cannot be used as an evidence in judicial proceedings. Because of the nature of intelligence; this information is not in conformity with the guiding principles of the criminal proceedings, since "unilateral, indirect, confidential, precise information of certainty and certain processed (impure) information". Therefore, it cannot be used as an evidence in the application of the protection measure in the criminal proceedings, in the opening of the public case and in the sentence of conviction.4

2) ByLock is a legal smart phone application. The ByLock messaging app appears both Apple and the Google Play App stores, in 20014, then later on it removed from these platforms by the developers in the same year. New versions subsequently, which appeared on less secure app downloading websites, can be reached by Android, Windows Phone and Blackberry users. 5 “ByLock is an encrypted messaging application that is not widely used today,” Tim Strazzere, director of mobile research at US-Israeli security firm SentinelOne told Reuters. “Anyone who wanted to reverse-engineer the app could do so in minutes.”6 So everyone not only in Turkey but also in the world can download this application to their smartphone from the Apple and Google Play. So using or downloading legal application is never considered a crime.

3) In Turkey, there has been public fear and belief for a long time that intelligence services or somebody can illegally listen people’s conversation and records their messaging on the phone. So illegal wiretapping is so common in Turkey. We have witnessed so many bad examples in Turkey. That is why encrypted messaging application such as WhatsApp, Telegram, Cover Me, Viber, Eagle, Facebook Messenger or I Message are so common in Turkey. People in Turkey can use or download ByLock just because of the need of secure line, not because of being a member of terrorist organization. Even if it is considered as an evidence to show main communication tool for a terrorist organization, it should be also proved that this service has been used for reaching the organization illegal aim. There is always a possibility for this kind of application open to public that some people might use or download it just because they are curious and want to try how it works. This experience cannot be considered as a crime which causes them to be dismissed from their work and to be detained or arrested.

4) An anonymous blogpost in November 2014 purporting to be from the developer claims ByLock had attracted around 1 million users, making it difficult to maintain, in part because the app had come under attack from unnamed “Middle East Countries”.7 The number of ByLock users are according to the Sabah Newspaper's 150 thousand, Science and Technology Minister Faruk Ozlu's 215 thousand, Hurriyet Newspaper writer Murat Yetkin 165 thousand, Google around 500 thousand.8

If downloading ByLock is considered a crime, all these people must be a member of FETÖ and also they have to be prosecuted and detained or arrested.