[OPINION] Statement of Judicial Council (HSK) Board of Inspectors Chairman: Investigation Procedure for Judiciary and End of Judicial Independence in Turkey

By LEVENT YILDIRIM

Introduction

More than 100.000 public officials have been dismissed from their profession unlawfully, many taken into custody and arrested within the scope of the so-called FETÖ/PDY investigations which was started following the 17-25 December 2013 corruption probe and which turned into a lynch campaign. At the top of all these dismissals, detentions and arrests come the members of the judiciary. So far more than 4.000 judges and prosecutors have been dismissed from their profession and investigations were carried out about all of these dismissed with the charge of being a member of the armed terrorist organization without any exception. As a result of these investigations, about 2.500 judges and prosecutors are still kept in prison.

Even though it has been over a year since, the relevant authorities in Turkey have not yet provided any legally and logically acceptable explanation to their domestic and foreign counterparts about the reasons why so many judges and prosecutors are dismissed from their profession and cannot convince them on this issue. In an environment where the current state of emergency is in effect and it is unclear when the emergency will end, the authorities may feel themselves not obliged to make any explanation to anyone in this regard. However, the question that they have countered with abroad is that how thousands of judges and prosecutors are declared as members of a terrorist organization in a day. This is one of the basic questions whose answer is curiously awaited.

Since the coup attempt in July 15, 2016, Bekir Bozdağ^[1], the Minister of Justice, the President of the (Supreme) Council of Judges and Prosecutors (HSYK, now HSK), and a political figure at the same time, and Mehmet Yılmaz^[2], former Deputy President of HSYK, made many contradictory statements on this subject at different times that were not based on any concrete evidence.

While the provided explanations are too far from making clear these illegal practices, new explanations are being made by different persons. In this context, HSYK Board of Inspectors Chairman Yunus Nadi Kolukısa recently made a statement. Kolukısa submitted the following answer to the question “How were the judges and the prosecutors determined in a night and dismissed?” that “This question was asked us both in Brussels and in European Council. The investigation that has been carried out by HSYK 3rd Chamber against Parallel State Structure since April 2015 was submitted to us. I have been personally participated in this investigation. This is not a one night case. We have started to work on this issue 1-1.5 year before. While working on this issue, we went out of the routine for the first time and carried out coordinated work with our security units, the intelligence agency, the terrorist department and the MIT (National Intelligence Organization). We held meetings two or three times in a week. We created an information pool. Within the framework of the general authorization given to us, we identified these persons.”^[3]

Before making an assessment about the explanation of HSYK (HSK) Board of Inspectors Chairman Yunus Nadi Kolukısa, we think that it is better to provide brief information about the investigation procedure for judges and prosecutors to show the weirdness of the said explanation, violating the principles of state of law and independence of the judiciary.

Investigation Procedure for Judges and Prosecutors

Article 159/9 of the Constitution regulates how judges and prosecutors are to be investigated when they commit a crime “arising out of their duties” or “in the course of their duties”. According to the Article, the investigation of judges and prosecutors for a crime “arising out of their duties” or “in the course of their duties” is only possible by the proposal of the relevant HSYK (HSK) Chamber and the approval of the HSYK President. This provision of the Constitution is a requirement of “legal guarantee of judges”.

Concerning offenses committed by judges and prosecutors “arising out of their duties” or “in the course of their duties”; it is understood from the relevant provisions that that the initiation of the investigation is subject to the permission of the 3rd Chamber of the HSYK and the President of the HSYK (HSK), that the investigation shall be carried out by an Inspector or another Senior Member of Judiciary appointed by the HSYK (HSK) Board of Inspectors, that in the event that the HSYK (HSK) gives a “prosecution permit” at the end of the investigation, the chief public prosecutor’s office of the nearest Criminal Assize Court to the Criminal Assize Court in the judicial locality of the relevant judge/prosecutor shall issue an indictment about the relevant judge/prosecutor with a request for “opening a final investigation” and submit it to the nearest Criminal Assize Court, that if the nearest “Criminal Assize Court” decides to “open the final investigation” after collecting evidences in accordance with Article 90 of the Law No. 2802, the relevant Judges/Prosecutors are tried according to their professional seniority (the Judges/Prosecutors with first-class degree at the Supreme Court, others at the Criminal Assize Court located in their judicial locality), and that the final investigation proceedings shall be carried out by the Supreme Court or the Criminal Assize Court in their judicial locality.

Concerning the “personal offenses” of the judges and prosecutors; it is understood that the initiation of the investigation is not subject to the permission or approval of the HSYK, that the authority of investigating judges and prosecutors is given by the last amendment in the relevant regulation directly to the Chief Public Prosecutor’s Office in the province where the regional court that the place of duty of the relevant judge and prosecutor is affiliated, and that the authority of prosecution also belongs to the local Criminal Assize Court in the same place.

However, this legal procedure does not apply to the Constitutional Court members, the Supreme Court members, members of the Council of State and the HSYK members, who are members of higher jurisdiction. Because there are separate provisions in the special legislation on the investigation procedure for the members of higher jurisdiction, and the HSYK (HSK) does not have a duty and authority in this matter.

According to the above-mentioned legal arrangements, it is not possible to accept the crime of being “a member of the armed terrorist organization” attributed to the judges and public prosecutors who are dismissed from the profession as a “personal offense”. If the attributed crime is the membership of a terror organization, it is unthinkable that judges or prosecutors will not commit this crime “in the course of their duty”, because it is a “continuous” crime. As committing this crime in the course of the duty is the necessity of the rules of life and logic, the provisions of Article 159 of the Constitution and Article 89 of Judges and Prosecutors Law No. 2802 should be applied to the judges and prosecutors who are under this criminal charge. After the investigation permit is given upon the approval of the HSYK (HSK), it is required that the investigation is carried out by the Board of Inspectors, that a “prosecution permit” is given by the HSYK (HSK) at the end of the investigation, that after these proceedings, an indictment is issued with a request for “opening a final investigation” and submitted to the nearest Criminal Assize Court, and that the relevant judges and prosecutors are tried according to their professional seniority either at the Supreme Court or at the Criminal Assize Court.

The proceedings explained above were the same applied earlier for judges Metin ÖZÇELİK and Mustafa BAŞER, who gave a verdict regarding the requests for “rejection of the judge” and “release” in April 2015, and also for the judges carried out the investigations publicly known as MIT (National Intelligence Organization) Trucks and 17/25 December operations.

The Explanation of the HSYK Board of Inspectors Chairman

Let’s go back to the explanation of the HSYK (HSK) Board of Inspectors Chairman Yunus Nadi Kolukısa: Investigation permits which are indicated in this explanation as given by the said HSYK 3rd Chamber are related to the members of the Judiciary who dealt with files of Ergenekon, Balyoz, Selam and Tevhit operations. Besides, there is no accusation of membership of a terrorist organization in these investigations. Therefore, these investigations which were reflected differently are in fact investigations about disciplinary procedures related to the duty, and the number of judges and prosecutors who are investigated in this manner does not exceed 300 in total.

If something else happened and if an investigation had been made related to the membership of a terror organization as claimed in the description of the Board of Inspectors Chairman, this fact would have been clearly stated among the grounds of the dismissal decision. The Supreme Council of Judges and Prosecutors (HSYK) 2015 data indicate that in 2015, it was decided to give an investigation permit only about 268 judges and prosecutors^[4]. Thus, the data released by the HSYK (HSK) clearly indicates that the explanation of the HSYK Supervisory Board Chairman does not reflect the truth.

On the other hand, the number of judges and public prosecutors who were expelled from the profession and investigated just after the July 15 coup attempt was 4.469 according to the latest statement of the Ministry of Justice dated 13.07.2017. Among them, the number of members of the judiciary, including those who were arrested and then released by judicial control, was 1.216, while the number of members still arrested was 2.431. Among these arrested members of the judiciary, there are 2.280 judges, 105 Supreme Court members, 41 members of State Council, 2 members of Constitutional Court and 3 HSYK members ^[5].

Even though the HSYK did not give any investigation and prosecution permit about 4.000 Judges and Prosecutors before the July 15 coup, how were those Judges and Prosecutors taken under technical surveillance by the relevant departments of National Police and National Intelligence Organization (MIT)? Which criteria and legal provisions were taken by these departments as the basis for the implemented technical surveillance?

There is one more possibility which may be the answer to these questions other than the above-mentioned investigation procedure. This is the possibility that the HSYK 3rd Chamber gives investigation permit for all Judges and Prosecutors without providing any concrete name and information to allow for the detection whether or not they are a member of a terrorist organization. However, it is clear that neither legally nor rationally and reasonably such an investigation can ever be granted. One of the best people to know that such an investigation permit cannot be given is the HSYK Board of Inspectors Chairman.

One of the things that needs to be addressed here is that “Did the HSYK create a blacklist within the scope of the explanation of the HSYK Board of Inspectors Chairman, despite the fact that HSYK (HSK) is not authorized regarding the investigations of Constitutional Court members, Supreme Court members, Council of State members and HSYK members? Or, was another unit assigned to create a blacklist?

Considering the statement of the HSYK (HSK) Board of Inspectors Chairman, what can be said about the legal regime in Turkey? Is the Republic of Turkey a Rule of Law as clearly stated in Article 2 of the Constitution^[6] or a Surveillance State?

The truth at this point is that the Chairman of the Board of Inspectors made an unfounded and misleading statement that incriminates 4.496 judges and prosecutors, who had been expelled from the profession and who were investigated as members of a terrorist organization.

In order to reach the right information at this stage, an important question needs to be answered: What is the number of Judges and Prosecutors, about whom the HSYK 3rd Chamber gave investigation permits for the crime of membership of a terror organization or for any criminal offense before July 15 coup attempt? A legally acceptable and reasonable answer to this question will remove any doubts about the said explanation. But why does the HSYK Board of Inspectors Chairman avoid responding to this simple question that will illuminate the situation?

As a member of a judiciary originating from the inspectorate profession, who supervised judges and prosecutors and investigated them when necessary, it is not possible for the HSYK Board of Inspectors Chairman not to know the procedure for investigating the members of the judiciary and the answers to the aforementioned questions.

We can explain why he made this statement. despite the fact that he has the true information:

Fear of losing his profession in case of opposition to the will of political power,
The idea of preserving his present position by making discourses that would favor the political power,
The desire to get a better position by adopting and advocating the illegality of political power if possible.

Although the above-mentioned reasons seem to be personal, they are important in terms of reflecting common thoughts of all the Judges and Prosecutors in charge who have not been expelled from the profession^[7].

The End of Judicial Independence in Turkey

It is always stated that the legislature, the executive and the judiciary are independent from each other in Turkey, but in practice this is not the case. After the 17/25 December corruption and bribery operations revealed the corruption activities committed by especially President Erdogan and ministers, ministers’ children, high bureaucrats and businessmen close to the government, the political power described this judicial activity as a coup attempt and has seen the independent judiciary as an impediment after the 17/25 December operations. In this context, the government established new courts to keep the judiciary under control, taking into account the possibility that existing courts would be contrary to their political aims and tendencies.

Within this context, first of all, all the administrative staff (including the Secretary General, Assistant General Secretaries, rapporteur judges and staff) who were serving in the HSYK (HSK) were discharged and new staff was appointed in place of them by virtue of the Law No. 6524 which entered into force on February 27, 2014. Even though the Constitutional Court cancelled this arrangement, the newly appointed administrative staff of the HSYK (HSK) have kept their positions, because there was no way for the former staff to get back their positions.

The then Prime Minister Erdoğan stated at that time that a project is being worked on and that the Criminal Peace Judgeships will be established. Following these statements, new quests have been sought to establish a judicial organization under the direction of the executive body to carry out the said purposes and the Criminal Peace Judgeships have been established with the enactment of the Law No. 6545 entered into force on 28 June 2014.

After that, the political power decided to get the control of the HSYK as the first goal. For this purpose, the government determined the HSYK member elections to be held on October 12, 2014 and set up the Judicial Unity Platform (YBP) to issue a list of candidates for the HSYK election. The election was held under the shadow of these political interference with the participation of the nominees of the Judicial Unity Platform which is openly supported by the government^[8], and other nominees who are under great pressure by the government after the 17/25 December period and who have the ideal to restore the independence of the judiciary.

The candidates of the Judicial Unity Platform supported by the government described themselves as a group that different voices and social groups came together (nationalist, idealist, alevi, leftist, rightist, etc.) and made promises that could be done with the government support. Some of these promises are 1.155 TL raise in the salaries for the members of the judiciary^[9], remission of disciplinary punishments for members of the judiciary who were previously disciplined^[10] and financing of the election works of YBP candidates by the government^[11]. In addition, AKP Group Vice President Mahir Ünal threatened independent candidates just before the election by stating that in case of their victory, the election will be cancelled (Disciplinary inquiries will be processed, existing titles will be taken back, some formal proceedings such as appointments and exiles will be done)^[12]. The HSYK member election was held under these conditions, and the Judicial Unity Platform supported by the government won the election.

Upon the victory of the candidates supported by the Judicial Unity Platform under the government’s control, the disciplinary punishments previously inflicted on the judges and prosecutors were remitted and 1.155 TL raise was made in the salaries of the judges and prosecutors as promised before the election.

Moreover, the selected candidates supported by the Judicial Unity Platform began to put pressure on almost all of the judges and prosecutors, whom they considered not supported them (approx. 5000 judges and prosecutors who do not vote for the candidates of YBP) by labeling them as “communitairan” (members of the “Hizmet” (Service) Movement) and appointed these judges and prosecutors to another positions before the expiration of their term of office without their demands in contradiction to the legal guarantee of judges.

There was now no obstacle left for the government in order to direct the courts to give decisions on membership of a “terrorist organization” or arrest or conviction due to any crime about any part of the society or the persons whom the government sees as opponents. It does not matter whether or not there is any evidence for the alleged crimes, or whether or not the activities constitute any crime at all.

It is no longer possible to make decisions contrary to the will of the political power and the HSYK which is under the control of the government, and to mention about judicial independence. In some places, prosecutors who do not make request arrests for the suspected persons and judges who did not issue an arrest warrant were either subjected to a disciplinary inquiry or they were dismissed.

One of the most striking examples of this is the fact that journalists Can Dündar and Erdem Gül, who reported news on MIT trucks, were arrested for charges of helping the terror organization and espionage.

In a TV program, President Erdoğan stated that “we are not done yet, they will pay the price” ^[13]. After this statement that means an apparent judicial intervention, they were arrested by the “project” Criminal Peace Judgeship, but released 3 months later upon the decision of the Constitutional Court. President Erdoğan has clearly shown his reaction against this decision of the Constitutional Court with this statement: “I neither obey nor respect”^[14]. After this reaction, the Constitutional Court has not given any decision that could lead to the release of detainees due to violations of their rights.

Another striking example in this context is the arrest of the judges in Istanbul, Metin Özçelik and Mustafa Başer, on 30 April 2015 due to their judicial decisions on the acceptance of the requests for rejection of the judge and release. Immediately after this incident, the HSYK Secretary General Bilgar Başaran did not hesitate to publicly disclose that “judges who will make such a decision will be arrested”^[15]. Upon President Erdoğan reflected his opinion about the proceedings applied for the mentioned judges with the words “It is late”^[16], the HSYK 2nd Camber President Mehmet Yılmaz (who is from the candidates supported by the Judicial Unity Platform) apologized from the President. This table has taken its place in history as one of the clear examples of how the judiciary lost its independence toward the political power. Mehmet Yılmaz, who made many similar statements like this, was firstly appointed as the Vice President of HSYK and then rewarded by the President Erdoğan by being re-appointed as a member of newly established HSK in accordance with the new Constitutional amendment (by the referendum held on April 16, 2017).

As a result of these regulations, the judiciary was tied to the political power through the HSYK (HSK). A legal scheme was established in which investigations are being held in accordance with the will of the political power. Judges and Prosecutors who did not decide in line with the request of the political power have been appointed elsewhere, taken under disciplinary investigation, dismissed and arrested. As it can be clearly understood from all these processes, it is no longer possible to make decisions contrary to the will of the political power and the HSYK which is under the control of the government and to mention about judicial independence.

The former Minister of Justice Professor Dr. Hikmet Sami Turk summarized this situation with these statements: “There is a great pressure on our legal system never experienced before. This is the unpredictable and unacceptable political pressure. The process is so bad that such pressure on judges and prosecutors has not been seen even during military coups” ^[17].

What did Yunus Nadi Kolukısa, who supported the Judicial Unity Platform candidates in the HSYK member elections and served as a HSYK inspector until the election date, do after the election? He was firstly appointed as the Vice Chairman of the HSYK Board of Inspectors, and his performance here would be highly appreciated (!), then he was appointed as HSYK Board of Inspectors Chairman immediately after the July 15 coup attempt, as a reward for his attitude of supporting the unlawful practices in the judicial system.

Conclusion

All the process witnessed in the judicial system following the 17/25 December corruption operations clearly shows that, the statement of the HSYK Board of Inspectors Chairman under the control of the AKP government does not provide any valid evidence for the unlawful practices that were made immediately after the July 15 coup attempt. Some of these practices are listed as follows:

The judicial personnel, whose number exceeds 4,000, were expelled from their profession without being subjected to a legal procedure,
They were arrested by the “project” Criminal Peace Judgeships, which were established in contradiction with the principle of natural judge,
Their assets were unlawfully seized,
They were evacuated from the public housings before the opened investigations have not been concluded,
The judges who made arrest decisions and the prosecutors who dealt with the said investigations were also arrested later on the same grounds.

These unlawful practices have also been criticized by EU, EP, US and the European Union of Judges (these criticisms have resulted in the suspension of the membership of the HSYK).

In a country where the rule of law and judicial independence is valid, the HSYK (HSK) Board of Inspectors Chairman, who is obliged to defend and protect the rights of all judges and prosecutors, must perform his duty without being affected by politics and other sources of repression. However, contrary to this, the Chairman of the Board of Inspectors of HSK made a statement indicating that he was acting according to the orders and instructions of political power. This understanding is incompatible with the integrity of and respect for the judicial profession, and is contrary to the principles adopted by many international organizations such as the Venice Commission, the European Association of Judges.

The statement of the HSYK Board of Inspections Chairman is a sort of confession of a crime. In this statement, it has been clearly indicated that a coordinated work was performed with the participation of law enforcement and intelligence agencies to create a blacklist of the judges and prosecutors who are opponents of the AKP government. This proceeding also constitutes the basis for unlawful practices committed. As a result of this labeling, it has been possible for thousands of Judges and Prosecutors to be detained, investigated, dismissed from the profession, and arrested for membership of a terrorist organization without relying on any legally acceptable evidence. The unlawful proceedings are also contrary to many rights, that are preserved by National and International regulations, such as the right against self-incrimination, the right to freedom of expression, the right to freedom of thought and opinion, the right to own property, the right to seek legal remedy, the right to fair trial, the right to freedom of communication, the right to privacy and freedom of religion and conscience. In addition, these practices may constitute a series of crime in the sense of criminal law, such as abuse of duty, slander, influencing fair trial, hate and discrimination, inciting people to hatred and hostility.

As a result, the HSYK (HSK) Board of Inspectors Chairman Yunus Nadi Kolukısa knows very well that if he does any practice contrary to the will of the political power or make feel he will do such a practice, he will be appointed to another low-level position, initiated an investigation about him or dismissed from the profession. Therefore, he fulfilled his duty of loyalty to the political power for bringing him to this position by making this statement in order to justify the unlawful operations. Unfortunately, he is mistaken if he thinks he can get rid of the responsibility for these criminal acts by acting like this. It should not be forgotten that when the judicial institutions begin to function as they should, this statement will be considered a confession of crime and will be investigated. And at that time, he will no longer find a political power behind him to save himself from these crimes.

FOOTNOTES