by TOLGA KUNTER

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Governments always wish for a judiciary that is subordinate to their commands, but they normally never dare to conduct such an act under the normal legal framework; or this was at least what it used to be like until recently. Today in Turkey (especially after the referendum held on April 16, 2017), there is a government-dependent judiciary, a situation which is also regulated by the present laws. How did Turkey, a prior European, modern, democratic country which used to be ruled by a parliamentary democracy based on – albeit not very sharply defined – the separation of powers and had performed a considerable progress on the way to becoming a member of the European Union, decline into a sort of third class system of unified powers or more correctly the authoritarian “one-man-rule”? It is possible to say that the most critical, most effective and consequential blow of the government that had earlier initiated/furthered this process is now actually terminating the independence of the judiciary.

17-25 December 2013 is the date when this sharp U-turn, which was most likely already being planned by the government, also become visible by the public. On December 17, the biggest corruption operation in the history of the Turkish Republic was initiated by the Deputy Chief Prosecutor Zekeriya Öz and Prosecutors Celal Kara and Mehmet Yüzgeç. As a result of the case, in which four cabinet ministers were also under accusation, 26 people, including the sons of interior and economy ministers, Iranian businessman Reza Zarrab, and the director of state-owned Halkbank had been detained.

Following this case, another corruption investigation was started by the prosecutor Muammer Akkaş against Bilal Erdoğan, the son of then-Prime Minister Erdoğan and some businessmen. On December 25, in relation to corruption and bribery claims, Prosecutor Muammer Akkaş issued a warrant to detain 96 suspects. However, as a result of the pressure from the politicians, the policemen of Istanbul Police Headquarters did not execute the orders of prosecutor Akkaş.

Initially this enormous corruption case, which led to the resignation of four ministers, arose an expectation that the politicians involved in the corruption would give account before court, because of intense public reactions, severity of the claims and the existence of very clear evidence. However, Recep Tayyip Erdoğan, who has been ruling the country for almost fifteen years now, displayed a very sinister political manoeuvre and closed down all these corruption cases in which his family was also involved. He first proclaimed that these corruption investigations were a “coup” to topple down his government initiated by the members of Gulen Movement.

On January 29, 2014, prosecutors Celal Kara and Mehmet Yüzgeç, who had started the December 17 investigation, were dismissed from the corruption investigation. The new prosecutors appointed to the case closed the case on October 17, 2014 by issuing a verdict of non-prosecution.

Prosecutor Muammer Akkaş, whose directives had not been executed by the police on December 25, were removed from the investigation one day later on December 26. The replacing prosecutor issued a verdict of non-prosecution for the 96 suspects and closed the case.

The rhetoric of “coup against the government” was working well. While Erdoğan, by exploiting the “coup” rhetoric on the political arena, was preventing the corruption to be freely discussed, he also managed to close all the corruption cases with the assaults on the judiciary. The word “coup” in a society which had greatly suffered from the coups in its history, has become a lifeblood for and a magic wand in the hand of Erdoğan.

Meanwhile in Hatay on January 1, 2014; in Adana on January 19, 2014, upon receiving a tip, the prosecutors and army forces working in Hatay and Adana stopped few trucks belonging to MIT (Turkish National Intelligence), suspected carrying weapons to Al-Kaida linked Al-Nusra and ISIS in Syria. During the search, it was found that the trucks were actually loaded with weapons (1). Such weapon transportation is a serious crime, not only according to international law, but also according to Turkish laws. Let alone being illegal, this act of crime was being committed under the information and directives of the government. The government reacted harshly against the legal execution and claimed that the trucks were full of aid content being taken to Syrians (2) An investigation was initited first against the prosecutors and then against the soldiers who carried out the searches for the trucks. Tens of soldiers were detained. Prosecutors were stripped from their authorities and exciled to some other positions. On May 8, 2015, Adana Chief Public Prosecutor General Süleyman Bağrıyanık, Deputy Chief Prosecutor Ahmet Karaca and prosecutors Aziz Takçı and Özcan Şişman (3) and on May 20, 2015, Hatay/Kırıkhan prosecutor Yaşar Kavalcıoğlu were detained (4) Their replacement prosecutors closed the case by issuing a verdict of non-prosecution (5). On the other hand, on November 25, 2015, journalists Can Dündar and Erdem Gül were detained, as they published news about the trucks carrying weapons to Syria on Cumhuriyet newspaper (6).

The following is another interesting case depicting the paranoia of the government about the MIT trucks: Brigadier General Hamza Celepoğlu, one of the general officers arrested as part of this prosecution, was among the officers who had been promoted to the rank of general in 2012. Meanwhile, one of the arrested officers Hüseyin Kurtoğlu, was one of the tens of colonels who were waiting to be promoted to the rank of general that year, but were not be able to become a general. After the MIT trucks investigation against the prosecutors and army officers started, he alleged that a plot had been concocted against him and this court case was opened against him to prevent him to be promoted. (Whilst he had not been elected eligible to promote in 2011 either, although there was no legal prosecution against him in that year. Curiously, he has become a general just after the coup attempt on July 15, 2016). Moreover, he claimed that Hamza Celepoğlu was promoted instead of himself and he is the one who stopped the MIT trucks, which shows that everything was planned years before. Since they were supporting the assertion of concocting plot against the government, the government liked Kurtoğlu’s claims. Based on these statements, on October 8, 2015, HSYK  (High Commission of Judges and Prosecutors) suspended judiciary duties of Mehmet Kurt, the prosecutor who opened the case against Hüseyin Kurtoğlu, Ahmet Türkeri, the judge who issued his warrant of arrest and Zuhal İşgören, who was not even present at the court hearing and only accepted the indictment of the prosecutor (7). Following the 15 July coup attempt, an arrest warrant was issued for these three members of the judiciary, also added to this arrest list were Mazlum Kurt, who gave opinion of approval, and Yargıtay (Supreme Court) members Necati Meran, Kenan Karabeyeser, Mehmet Ali Demirezici and Esabil Saylak who approved the court’s decision to arrest Kurtoğlu (8).

After December 17-25, 2014, the judiciary became one of the major targets of Erdoğan (namely the government), who started to lunge attacks to exert more control over the judiciary. He made the parliament to issue a law which changes the HSYK’s structure completely. This law, to which the EU also reacted because it annihilates the independence of the judiciary, was annulled by the Constitutional Court on April 11, 2014. However, by the time the Constitutional Court annulled the law, the operations of the government had already changed the structure of the HSYK.

Another critical operation of the government to control the judiciary during this period was to establish the Yargıda Birlik Platformu (Platform of Unity in Judiciary) for the HSYK elections which were going to be held on October 12, 2014. The government used all its public facilities to support the candidates of the Yargıda Birlik Platformu. Not surprisingly, these candidates won the HSYK elections. This meant that the HSYK was now fully under the control of the government.

Following the HSYK election, in defiance of previous regulations and procedures, the new members of the HSYK changed the places of duty of thousands of judges and prosecutors, including Chief Public Prosecutors and Heads of High Criminal Courts. By appointing 144 new members to Yargıtay (Court of Cassation), and 33 new members to Danıştay (Supreme Administrative Court), they constituted a body of judiciary that is in line with the desires of the government.

It can easily be said that since 2014, not even a single investigation can be carried out without the approval of the government. On the contrary, judges who gave verdicts which the government disliked have been dismissed from their positions and some have even been arrested. For example, Istanbul Judge Mustafa Başer adjudicated a case about 75 detained people including STV director Hidayet Karaca and decreed for their release on April 25, 2015. The only accusation about these people was their alleged affiliation with Gulen Movement. This release decree was not implemented under the pressure of the government. Just because of this decree, Judge Mustafa Başer and Judge Metin Özçelik were dismissed from their positions on April 27 and, a few days later, they were also arrested (9).

At another case held on January 18, 2015, Judge Habil Kahraman in Şanlı Urfa issued a decree of release for 3 police officers who were again accused for having links with the Gulen Movement. Judge Kahraman was suspended from his duty on April 27, 2015 and later, together with Şanlıurfa High Criminal Court and Committee Head Mustafa Gürbüz who appointed Judge Kahraman to this adjudication were expelled from their judicial profession (10).

The case of Dutch journalist Frederike Geerdink is even stranger. Journalist Geerdink was detained on January 6, 2015, in Diyarbakır, with the directive of Prosecutor Ahmet Hakan Özdemir. Geerdink’s house was searched with the warrant issued by Judge Ali Topaloğlu. After intense reaction came from the Dutch Government, he was released on the same day. The Turkish Government said to Dutch Foreign Minister Bert Koenders, who was in Turkey at the time, that the detention of the journalist was a plot carried out by the members of the Gulen Movement to put the Turkish Government in a difficult situation (11). Meanwhile, at the 6^th Criminal Court of Diyarbakır, a case was opened against the Dutch journalist for “making propaganda of the terrorist organisation PKK”. At the end of the adjudication, Prosecutor Şaban Özdemir issued his opinion to release the Dutch journalist, while Presiding Judge Melih Uçar decreed for his arrest. However, when the two other judges of the court returned verdicts of acquittal, Frederike Geerdink was released with a majority of votes (12). After the adjudication, pro-government Court Committee Head went into the rooms of the member judges and showed great reaction to their verdict of acquittal (13). On September 9, 2015, about 5 months after the court hearing, Geerdink was detained again and deported. Interestingly, while the Dutch journalist was being deported, Judge Ramazan Faruk Güzel, who made the Dutch journalist’s release possible by voting for his release, was dismissed from his position. Prosecutor Şaban Özdemir, who gave opinion for his release, was first exiled to another position, then after the July 15 coup attempt, was arrested. Both are now accused of being members of the Gulen Movement. On the other hand, Ahmet Hakan Özdemir, who voted for the detention of the journalist; Judge Ali Topaloğlu who gave the warrant to search the journalist’s house, and Judge Melih Uçar who also voted for the detention of the journalist were rewarded by being appointed to places they wanted and still continue to work in the judiciary (14).

Although Erdoğan has taken great control of the judiciary by means of HSYK, wanting to establish an authoritarian regime, he was far from being satisfied with the present structure of the judiciary. During the HSYK elections, about 5000 judiciary members did not vote for the nominees supported by the government. They started an intense work to determine these members and have prepared witch-hunt lists. Soon it was going to be understood what these purge lists were going to be used for.

It was understood that Erdoğan front was well prepared for the July 15 coup attempt, or as named by many experts closely following the events and the opposition, “the controlled coup”. Not surprisingly, within hours of the coup attempt, Erdoğan straightaway said that “the coup attempt was carried out by the members of the Gulen Movement” and “it is a blessing of God”. If using only the rhetoric of “coup” has facilitated him to be saved from the prosecution of the 17-25 December investigations, one can imagine how much a real-life-like coup could provide for Erdoğan!

What he really meant by calling the coup attempt as “a blessing of God” started to be clear beginning from the morning of July 16. Soldiers involved in the coup were detained. This was inevitable and quite normal. But there was something not that normal. HSYK held a meeting in the morning of July 16 and announced that 2745 judges and prosecutors were suspended from their posts. Press and media, which were now completely subordinate to the government, did not even discuss how the coup investigation could be linked to these judges and prosecutors, or how so many names had been accumulated in such a short time. Even to write down the names of the 2745 judges and prosecutors would need hours of work. The plans, however, were already prepared. Prosecutors straightaway issued warrants of detention for these dismissed judges and prosecutors, and a great majority of them have been arrested.

The previously concocted plan was “running smoothly”. The independent judiciary – the greatest hindrance before the authoritarian regime – has been annihilated completely. When thousands of prosecutors and judges were being detained, not any opponent voice -even a whisper- was heard from the rest of the members of the judiciary.

Then the state of emergency (OHAL) was announced and the parliament was completely deactivated. With governmental decrees (KHKs), tens of thousands of people have been fired from their jobs. Illegal purge lists were prepared in every corner of Turkey about hundreds of thousands of people who were claimed to have links to the Gulen Movement. These people have been detained for the accusation of being members of an armed terrorist organisation and tens of thousands of people have been arrested without even checking whether there is or not any evidence against them.

The judiciary, whose one third of members were now in jail, has turned into a purging weapon in the hands of Erdoğan, who is trying to establish a new regime based on one-man-rule. About the pressures exerted by HSYK, Mehmet Gülçek, one of the very rare judges who managed to remain at his post, once wrote: “In the past 23 years of time, I had never felt so much psychological pressure as I felt in this period of time… Leave us alone anymore!” (15). Judge Adem Arslan, on the other hand, wrote: “Dear Mehmet Yılmaz (Deputy Head of HSYK) has said that ‘we cleaned the judiciary from FETO, but it is not enough, another 1200 people are being investigated’… You literally made us purge list fools… All we talk about are those lists…  Confessors list, bylock list, elections list, people who are likely not have voted for us list; there is nothing in your file, but we are confused, so prove us that you are not from FETO list…” and added, “You threw away 40% of the whole judiciary. What else is this pressure for?” (16)

What else could be expected from a judiciary, more than one third of members of which have been dismissed, expelled or arrested!

Despite the fact that it exerts so much pressure on the judiciary and is now able to control nearly everything, the government is still aggressively intolerant for even the slightest opposition and continues to keep judges and prosecutors under pressure by lashing them out. For judges, an independent judiciary is only a dream anymore. If you issue a verdict that the government does not like, at best, you will be exiled to somewhere else, at worst, you will be dismissed from your post and/or jailed. While there are so many examples of this, but even the very few cases which have found way to appear on media despite the heavy censure and pressure, are more than enough to give an opinion!

During the March 18, 2017 hearing of the “coup attempt” case at the 1^st Malatya Criminal Court, the court members gave verdict to release Colonel Avni Angun and decided that Chief of Staff Hulusi Akar and some high-ranking army officers should be listened (17). These interlocutory decrees caused disturbance at the government front. Meanwhile, the head of the army did not even give any account at the coup commission formed at the parliament. After that court hearing, Presiding Judge Vedat Koç and Prosecutor of the sitting Gökhan Orman were replaced by the new court members (18). At the hearing held on April 11, 2017, the new court members issued a verdict to detain Avni Angun (19).

At a court case opened for a claim about the Gulen Movement being organised within the media, the 25^th Istanbul Criminal Court decided to release the 21 detainees who had been arrested on March 31, 2017. The government harshly reacted to this verdict and prevented the defendants to be released. The eight defendants who had received acquittal from the previous court members were detained by the new ones. They had not been able to even come out of the prison. On the other hand, on April 3, HSYK urgently held a meeting and suspended the judicial duties of İbrahim Lorasdağı, the Head of the 25^th Istanbul Criminal Court, and Judges Barış Cömert and Necla Yeşilyurt Gülbiçim, and Prosecutor Göksel Turhan (20).

These suspensions were not confined only to this court hearing, but were an open message threatening all judges and prosecutors in Turkey – a message telling, “No one ever dare to imagine an independent judiciary!” After this action of HSYK, the verdicts of release throughout Turkey stopped at once. The outcome was obvious: “In Turkey, no one can come out of prison, unless the government says so.”

Another case was in Antalya. Judge Yücel Dağdelen, the Head of the 2^nd Criminal Court was removed from his position and transferred to Manisa as a low ranking judge, just because he had issued a verdict of release on March 30, 2017 for – mostly journalists – eight people who had been detained for 8 months (21) Other two judges of the court and Prosecutor Hacı Mehmet Güdül were also removed from the case (22). The defendants who had been released before is now again arrested.

An Ankara Judge Köksal Çelik rejected the request to detain Adil Öksüz, one of the suspects of the July 15 coup attempt. The prosecutor objected to this decision. The judge who examined the objection of the prosecutor, rejected the objection. Judicial duties of both judges, just because of these verdicts of theirs, were suspended on August 16, 2016 (23), while on May 23, 2017, Çetin Sönmez has been put into custody.

During the detention of Çetin Sönmez, another event occurred demonstrating the poor situation the judiciary is in. Çetin Sönmez was first released on May 21 by the 2^nd Ankara Criminal Court of Peace. Known as the voice of Erdoğan on media, Cem Küçük appeared on TV at the same night and reacted against the release of Çetin Sönmez and told that this judge must be arrested at once. Upon this, Yüksel Kocaman, the Ankara Chief Public Prosecutors, sent a message to Cem Küçük’s mobile phone saying that they filed an objection to the verdict of acquittal and are going to be considered to re-detain this judge. Cem Küçük read this message live on TV (24). After this event, Judge Sönmez was arrested again on May 23, 2017 (25).

One of the journalists mentioned above who had been released by the 25^th Istanbul Criminal Court, but detained again was Ayşenur Parıldak. On May 2, 2017, she was released once more, this time by the 14^th Ankara Criminal Court where many critical coup cases are heard. This decree of release caused disturbance at the government front and upon objection, Ayşenur Parıldak has been re-detained on the same day by the same court. However, issuing this verdict of detention did not save the presiding judge from being downgraded to a lower rank office. Presiding Judge İsmail Ademoğlu lost his position and on May 9, 2017, he is now appointed to the Regional Court of Justice in Ankara as an ordinary judge. Among the judiciary, it is a known fact that this kind of appointment is a demotion for a court head in Ankara (26)

On January 30, 2017, the 8^th Diyarbakır Criminal Court issued a verdict of release for the detained HDP Parliament Member İdris Baluken. Upon objection, Baluken was arrested again on February 21, 2017. Judge Cem Boztaş, the Head of the 8^th Diyarbakır Criminal Court, was dismissed from his post and appointed to Ankara as an ordinary judge (27).

Another case is about Judge Şenol Demir, the Head of the 2^nd Penal Chamber of Antalya Regional Court of Justice. Denizli Criminal Court sentenced a defendant to 6 years and 3 months imprisonment for being a member of the Gulen Movement. Upon appeal, the case was brought to the 2^nd Penal Chamber. On April 4, 2017, the court repealed the conviction stating that there are not sufficient amount of evidence and the MIT report about the defendant using ByLock application is not adequate for him to be convicted (28). Upon this, Head of the Chamber Şenol Demir was taken away from his post on May 9, 2017, and demoted to Konya as an ordinary judge (29). Judge Demir, who had been appointed as the Head of Penal Chamber of Antalya Regional Criminal Court of Justice just one year before, was expected to remain at this post at least for 4 years (30).

The latest case happened in Gaziantep. The 11^th Adana Criminal Court issued a verdict of detention about a defendant for being a member of the Gulen Movement. Upon appeal, the case was sent to the 3^rd Penal Chamber of Gaziantep Regional Court of Justice. The Chamber repealed the detention verdict by a majority of votes, stating that a detention verdict cannot be based on ByLock messages, the contents of which are too vague (31). When this verdict was publicised, Zafer Yarar, the Head of the Chamber, who voted for repealing the detention verdict, has been dismissed from his position and demoted to Kayseri as an ordinary judge. Interestingly, Judge Bayram Korkmaz, who appended a dissenting opinion to the repeal verdict, has been appointed as the head of the chamber (32). As he was appointed on March 25, 2016, Judge Zafer Yarar is expected to remain as the Head of Penal Chamber of Gaziantep Regional Criminal Court of Justice for at least 4 years (33).

I think providing the above examples to summarise the current situation of the Turkish judiciary is quite enough. The government has completely taken the control of the judiciary by means of HSYK (as now called HSK) and is using it as a tool to intimidate the judges, prosecutors and opposition groups. At present, the judiciary in Turkey, as described by Prof. Sami Selçuk, is nothing but a “dead corpse” and “the final nail is hammered into his coffin”.

In today’s Turkey, verdicts of detention or release, conviction or acquittal of people are not based on jurists’ judgements that they freely acquired in accordance with the law and conscience; but are based on the will of the power holders. That is, if the government is telling, “you are guilty”, there is no chance for you to be “innocent”. The judiciary within this system is just a mechanism that issues the orders of the ruling power in a written form.

In such a situation, the European Court of Human Rights must actually act as an insurance for the countries who recognised its adjudication authority. It seems, however, the European Court of Human Rights is just watching all these obvious human rights violations which are clearly seen by everybody in Turkey. The ECHR is still declaring the applications from Turkey inadmissible for the reason that they have not exhausted all domestic judicial remedies. However, it is obvious that there is no effective judicial authority left in Turkey where people can apply and yield satisfactory legal outcomes. This attitude of the ECHR encourages human rights violators in Turkey to put human rights and freedoms at stake more severely.