Although the İstanbul 32nd Court of First Instance on Saturday evening ruled for the release of journalist Karaca and 63 imprisoned police officers who have been kept under pre-trial detention for months despite a lack of evidence substantiating their incarnation, the court's ruling was not enforced by public prosecutors who were on duty on Saturday and Sunday in a move that is hard to explain in a state of law and is likely to deal another blow to the principle of the supremacy of the law in Turkey.
“Unfortunately, the judgment of Mr. Prosecutor is a negative one. The court's release ruling was not enforced. It is such a pity: A prosecutor does not have a say in a court's ruling,” lawyer Kemal Şimşek, who represents some of the imprisoned police officers, said on his Twitter account on Sunday.
Another lawyer, Sıddık Filiz, said the prosecutors are committing a crime by not complying with the court order.
Referring to Article 138 of the Constitution, he said judges make their judgments independently. Everyone and every institution has to abide by the rulings of judges, and the enforcement of those rulings cannot be delayed.
Gültekin Avcı, an attorney representing Karaca, in a statement to reporters on Sunday evening spoke about a conversation between himself and the public prosecutor who refused to abide by the court's ruling for the release of the suspects.
Avcı said the prosecutor is well aware that what he is doing is unlawful, yet he told Avcı in tears that there is nothing he can do because he will be disbarred if he facilitates the release of the suspects.
“This is the point the county has reached today. Even judges and prosecutors including the honest ones are bowing in tears before the orders of the palace [a reference to President Recep Tayyip Erdoğan],” Avcı told reporters.
Karaca, who is being held in Silivri Prison without any indictment or any reason for the extension of his arrest, was detained as part of a major media crackdown on Dec. 14, 2014, just three days before the first anniversary of the massive corruption investigations of Dec. 17 and 25, 2013. The year before the major crackdown on the Samanyolu Broadcasting Group and Turkey's best-selling Zaman daily, the Justice and Development Party (AK Party) government and its former leader and current President Erdoğan used all possible means to muzzle the remaining free and independent media to prevent questions about corruption.
As for the imprisoned police officers, they were detained in operations starting on July 22 on charges of spying and illegal wiretapping in two separate probes and were later arrested.
The operations against the police are widely believed to be an act of retribution by Erdoğan's administration for the anti-corruption investigations in which the sons of now-former ministers and many government-affiliated figures were implicated.
Lawyers representing Karaca and the imprisoned police officers have several times petitioned the penal courts of peace, which were established by the AK Party government last year, requesting a replacement of the relevant judges at these courts on the grounds that they acted on political instructions. Their requests were repeatedly denied. When the lawyers made their last request for a replacement of judges, one of the penal judges of peace, İslam Çiçek, told them penal courts of peace are not in fact authorized to examine requests for replacement of judges at these courts, telling them to file their requests with the courts of first instance, which are above penal courts of peace.
Lawyer Ömer Turanlı, who represents some of the imprisoned police officers, wrote on his Twitter account that Judge Çiçek “showed us the way” for the release of their clients.
Since penal courts of peace are newly established courts, there is ambiguity regarding the scope of their authority.
The lawyers then petitioned the İstanbul 29th Court of First Instance for a replacement of the judges hearing their clients' cases at the penal courts of peace. The İstanbul 29th Court of First Instance accepted the lawyers' request on April 20 and commissioned the İstanbul 32nd Court of First Instance to examine the lawyers' requests for a release of their clients, and it ruled for their release.
A copy of the İstanbul 32nd Court of First Instance's decision for the release of the 63 suspects was shared on Twitter by the lawyers. The court said in its reasoned ruling that the suspects should be released as there is no concrete evidence that requires their arrest and that they are not likely to flee the country as they did not attempt any such action and had surrendered to the police themselves.
The judge said the basis for the ruling to release Karaca was a series of human rights violations that were committed during his detention.
Referring to decisions handed down by Turkey's Constitutional Court and the European Court of Human Rights (ECtHR), the court also said the detention of Karaca and the police officers was extended unlawfully and that the decisions in favor of their prolonged arrest do not comply with those of the country's Constitutional Court and the European court.
In addition, the court said since the arrest of the suspects , the prosecutor's office has not shown which evidence it is trying to collect or has collected despite the long period of time that has elapsed.
The decisions of the court of first instance are final and cannot be legally challenged.
Karaca, who shared his views on the court's decision for his release through his lawyer who visited him in Silivri Prison, said, “Although this decision is belated and is not being enforced [by prosecutors], the message it gives to the world is important.”
Karaca was arrested following a government crackdown that targeted 27 people, including scriptwriters and a graphic designer. Karaca and three former police chiefs were arrested on charges of leading a terrorist network, while other detainees, including Zaman Editor-in-Chief Ekrem Dumanlı, were released pending trial.
In a decision announced on Dec. 19, 2014, Judge Bekir Altun decided in favor of the arrest of Karaca, although Karaca's questions about the evidence of his alleged terrorist activities remain unanswered.
The only “evidence” supporting Karaca's arrest is a fictional TV series that aired on Samanyolu TV in 2009 that mentions an extremist organization named Tahşiyeciler. The organization, which is sympathetic to al-Qaeda, was later subject to a police operation in which its leaders received prison time.
The prosecutor argues it was Karaca who plotted against this terrorist organization by means of sending messages to the police chiefs through the TV series that aired on his TV station. The judge used an illegally acquired phone conversation of Karaca in 2013 to arrest him for events that transpired in 2009, although the illegal wiretap was excluded from the case after Karaca's lawyers objected.
The penal courts of peace, which ruled for the arrest of Karaca and dozens of police officers despite the lack of any concrete evidence against them, are seen as instruments for enforcing the government's wishes by way of instigating arrests based on the headlines of pro-government newspapers.
Since the Dec. 17 graft scandal erupted, the AK Party government and Erdoğan have been engaging in a battle against the faith-based Gülen movement, also known as the Hizmet movement and inspired by Turkish-Islamic scholar Fethullah Gülen, and police officers and civil servants whom the government considers close to it. They accuse the movement of plotting to topple the government while the movement strongly denies the charges.
Published on Sunday's Zaman, 26 April 2015, Sunday
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