Istanbul Palace of Justice protest at football fans accused of coup plot, 2014. Demotix/ Avni Kantan. All rights reserved.Jailing journalists
has been one of the hallmarks of Turkey’s poor
human rights record, a kind of shorthand for describing the country’s authoritarian
tendencies and flawed justice system. But in the run up to a highly contested
general election in June, that treatment has been extended to judges and
prosecutors who issue decisions the government doesn’t like.
The Justice and
Development Party (AKP) government, under the shadow of President Recep Tayyip Erdoğan, has been accusing these judges of acting
as members of an armed organization attempting a coup. Other judges friendly to
the government have been sending them off to jail while there is an investigation.
Over the past
month, three judges and four prosecutors have been put in pre-trial detention,
all as a result of decisions they made while discharging their professional
duties rather than any evidence of criminal activity. Another four prosecutors
barred from the profession during May may be next to see the inside of a cell.
The shared feature of these cases is that the decisions that led to their
arrests were all on issues pertaining directly or indirectly to allegations of
unlawful activity implicating the Erdoğan-dominated government.
Government split with the Gülen movement
Commentators in
Turkey view the arrests as another episode in the destructive split between
Erdoğan’s AKP and its former long-term ally, the influential Gülen movement.
This movement, led by the US-based cleric Fethullah Gülen, allegedly has many
followers in the judiciary, police and bureaucracy. In December 2013, the
simmering conflict between the two exploded when allegedly Gülen-affiliated prosecutors
and police arrested scores of people, including government ministers’ sons, on the
evidence of massive corruption
and bribery. The accusations reached Erdoğan’s own family.
The government
hit back hard, obstructing the investigation, removing and later jailing police
officers and moving to take firm control of the judiciary through a mass
rotation of judges and prosecutors, as well as institutional
and legal changes.
President Erdoğan
and Prime Minister Ahmet Davutoğlu have made it a dominant theme of AKP
politics since the split to say that the Gülenists are a “parallel structure”
that must be purged or will overthrow them. The issue has featured prominently
in the AKP’s election campaign. The crackdown has not just been discursive:
there have been multiple arrests of police and raids on legal associations and
businesses in various cities over the past few months. The government seems to
have decided that judges and prosecutors should be next in line to be jailed,
as coup plotters and members of what the ruling party has decided to term a ‘Gülen-led
terrorist group’.
Judge imprisoned for granting bail
Judge Mustafa Başer
of Istanbul’s Criminal Court of First Instance No. 32 found himself arrested
and jailed on May 1, days after granting bail to a group of allegedly Gülenist police
suspects. A day before that, the judge who had sent the case to him landed in
jail too. The surreal story of how a
bail decision could lead to a judge‘s own imprisonment is worth recounting in
some detail.
Başer had
granted bail on April 25 to 62 imprisoned police officers and a journalist,
Hidayet Karaca. Among the police officers were some who had played a key role
in exposing allegations of government-linked corruption and bribery in December
2013, and had been rapidly demoted and later imprisoned on various allegations of
attempting to overthrow the government, procuring and disseminating information
pertaining to the security of the state, falsifying documents, illegal
wiretapping and terrorism. Karaca, the
head of the pro-Gulen Samanyolu TV group, had been in
prison since December 2014 under investigation on the highly dubious allegations
of leading a terrorist organization.
Judge Başer has
argued before a court that he approved bail after 10 judges (known as criminal
judges of the peace) had failed to provide any explanation for turning down
bail applications lodged by the suspects’ lawyers. Facing these repeated
rejections, the lawyers had gone to Istanbul’s Criminal Court of First Instance
No. 29, where judge Metin Özçelik accepted their petition to disqualify the 10 judges
on the grounds that they had not acted impartially. Judge Özçelik ordered the
case to be passed to court no. 32, where judge Başer then granted bail to all
suspects.
The government-controlled
High Council of Judges and Prosecutors (HSYK), Turkey’s top body responsible
for judicial appointments and disciplinary measures, stepped in within hours,
contending that both judges had exceeded their authority. They claimed that the
judges were employed in a separate system of penal courts of first instance that
had no powers to overturn decisions of the criminal judges responsible for
handling decisions on bail and pre-trial detention during the criminal
investigation stage. Başer’s decision to grant bail on April 25 was blocked.
The men remain behind bars.
Just a day after
Başer issued his decision, Prime Minister Davutoğlu made a speech
in which he condemned the two judges, saying they had conspired against the
government as part of the Gülenist “parallel structure.” It was clear from more public statements and
tweets by the government that it was leading the effort against the judges. The
most extraordinary aspect of all this, and the element causing the most
concern, is that accusations of exceeding their authority rapidly turned into a
full criminal investigation on allegations of acting against the government
itself. After President Erdoğan accused
the High Council of being slow to act, the body apologized for the delay of
a day and on April 27 suspended Başer and Özçelik for three months and went on
to recommend their arrest. By the end of the week, an Istanbul penal court had sent
both to jail.
Gone was the
suggestion about technical irregularities in the judges’ decisions or a misuse
of their powers. The Istanbul Bakırköy heavy penal court no. 2 sent Başer and Özçelik
to pre-trial detention on grounds that they had received orders from Gülen in
the US and, in attempting to allow the police officers and Karaca to be released
on bail, had acted on those orders and were under the influence of obscure
pronouncements by Gülen.
The court said
that Başer was under investigation for attempting to overthrow the government, for
partial or total prevention of government duties, and for membership of an
armed organization, on the basis of alleged “concrete evidence showing the
existence of a strong suspicion of a crime that he acted in concert with those
suspects [to whom he had granted bail].” In other words, Başer was part of the same
illegal organization–an armed terrorist organization no less–that the police
and Karaca were suspected of being in although neither the police nor Karaca have
yet been indicted under such charges.
Disbarring and jailing prosecutors
Twelve days after
Başer was jailed, alongside Özçelik, the High Council of Judges and Prosecutors
announced that the four prosecutors and a judge who had been responsible for
the December 2013 government-linked corruption and bribery investigations on which
the imprisoned group of police had also worked, had been disbarred. They have a
right of appeal but are also being prosecuted for misconduct and negligence,
and it is likely that those four prosecutors too will soon find themselves
under investigation and jailed on allegations like those Başer and Özçelik
face.
The Higher
Council of Judges and Prosecutors a week later recommended the arrest of
another four prosecutors who had served in the southern city of Adana. The
nearby Tarsus Heavy Penal court ruled that the four should also go to jail while
under criminal investigation, like Başer and Ozcelik, for involvement in a Gülenist-planned
attempt to overthrow the government, plus obtaining and revealing information
pertaining to state security.
The case of these
four public prosecutors–the former Adana chief prosecutor Süleyman Bağrıyanık,
his former deputy Ahmet Karaca, and two former Adana prosecutors, Osman Şişman
and Aziz Takçı, who worked alongside them–concerned the completely different
matter of their decision to follow up on tipoffs on January 1 and 19, 2014 that
trucks carrying weaponry were heading to the Syrian border.
Obliged by
Turkey’s Criminal Procedure Code to investigate any potential crime brought to
their attention, the prosecutors attempted twice to examine the contents of the
trucks despite calls from the Justice Ministry informing them that they had no
authority to do so and that the trucks were part of an operation run by
Turkey’s National Intelligence Agency (MİT) to carry humanitarian assistance to
Syria.
The government
has maintained this line, although in the January 19 search the prosecutors
recorded seeing weaponry. The government had not sought parliamentary
authorization to supply weapons to Syrian opposition groups, and the whole
incident exposed murky dimensions to Turkey’s involvement with the conflict in
Syria and the Turkish government’s concern to prevent any legal scrutiny of Turkish
intelligence operations.
Implications of government control of the
judiciary
These cases show
the government has few qualms about jailing judges and prosecutors when their
decisions touch on issues that could be politically damaging in the June 7
general election.
The government
clearly doesn’t want police officers who investigated the December 2013
corruption allegations released from prison and appearing before TV cameras to
repeat the allegations. The government also doesn’t want discussion of possible
weapons transfers to Syria – some commentators have suggested into the hands of
rebel groups with radical extremist affiliations – when parliament has granted no
such authorization.
While there is
undoubtedly a power struggle going on between the government and the Gülen
movement, this struggle raises important issues for the rule of law in Turkey.
Human Rights
Watch has over many years documented the ways in which Turkey’s highly politicized
justice system has perpetuated a plethora of abuses: trumped up charges against
government opponents in the absence of evidence of criminal wrongdoing, often combined
with mass arrests; arbitrary use of charges relating to terrorism and other
crimes against the state on a mass scale; use of prolonged pre-trial detention
in these cases, with the severity of the charge itself cited by courts as
justifying the measure. Without taking sides in the power struggle with the
Gülen movement, it is of great concern that the government is pursuing a policy
of retribution against those it suspects of affiliation with an alternative
political opinion.
The most blatant
example of politicized cases in terms of numbers alone has been the cases against
Kurdish political activists charged under terrorism laws with membership of
armed organizations (KCK/PKK). Many Kurdish students and activists are in
prison today after being convicted in unfair trials and sentenced to long
prison terms for activities that amount to non-violent political association.
Other cases
include the famous mass coup-plot trials: Oda TV, Ergenekon and Sledgehammar. The
irony is that these cases were pursued by the very same police, prosecutors and
judges whom the government is targeting today as members of an alleged Gülenist terrorist organization.
There should be
no illusion about the need to reform Turkey’s discredited justice system. Its usurpation
by the government and Erdoğan for their own political payback not only does
further harm but jeopardizes the basic rule of law, which two senior AKP figures–deputy
prime ministers Ali Babacan and Bulent Arinç–have repeatedly pointed out is key to
Turkey’s future and prosperity.
After the
election, the next government should seriously consider what the future for
Turkey does hold if its political leaders have no qualms about jailing judges
and prosecutors for decisions that touch allegations of government wrong-doing.
If the judiciary is made an arm of government and of Erdoğan’s presidency, the most important check
on power, and access to justice for the population at large, is gone. In that
case Turkey loses all claim to its democratic credentials.