Karaca's lawyer, Fikret Duran, told the Cihan news agency that the prosecutor who blocked the journalist's release is afraid of being demoted. Stating that the prosecutor has been bombarded with phone calls since Sunday morning and looked highly nervous, Duran said: "He is afraid that he can be exiled [or] punished if he implements the court's decision. He is forced to make the choice of committing a crime by not implementing the ruling.” According to Duran's statement, Karaca being kept under arrest even though hours had passed after the release verdict was a violation of the journalist's rights. Duran stated that he will take the issue to the European Court of Human Rights (ECtHR).
Sıddık Filiz, a lawyer representing the officers who are under arrest, wrote on Twitter, "The prosecutor is officially involved in a crime [by his action] in not implementing the release order." Another lawyer representing the defendants commented in a tweet, saying: "This is a shame. A prosecutor is not authorized to override a court decision."
Lawyers representing Samanyolu Broadcasting Group CEO Karaca and the 63 arrested officers announced on Saturday that an İstanbul court ruled to release their clients pending trial.
Karaca, who was 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. In the year preceding the major crackdown on the Samanyolu Broadcasting Group and Turkey's best-selling daily Zaman the government had used all means possible to muzzle the country's remaining free and independent media to prevent questions about corruption.
“Good news for Turkish democracy and freedom of press. The İstanbul 32nd Court of First Instance ruled for the release of Hidayet Karaca,” Duran said during a live TV interview, late on Saturday, saying that the lawyers for the defendants had received the court ruling and were waiting for a written copy of the ruling to take it directly to Silivri Prison to pave the way for Karaca's release pending trial. The lawyer had said there were claims that the chief public prosecutor was trying to prevent the ruling from being implemented.
İstanbul Chief Public Prosecutor Hadi Salihoğlu allegedly held an emergency meeting at İstanbul Courthouse to block the ruling's appearance in the National Judicial Network Project (UYAP).
Early on Sunday morning, Salihoğlu issued a written statement regarding the court's decision to release Karaca and the police officers, objecting to their release. Salihoğlu claimed that the release order was invalid because the suspects' lawyer earlier asked for recusal of the judge who previously handled the case and the İstanbul 29th Criminal Court of First Instance ruled to hand over the case to the 32nd Criminal Court of First Instance without proper examination of the case files and with no authority to do so.
Karaca's lawyer Gültekin Avcı, speaking to the Cihan news agency, said the prosecutor on duty that night told him that he could not implement the release verdict and "appeared nervous and fearful." Avcı commented that prosecutors are not authorized to override the decisions of judges. "Once again, we are facing a severe violation of the law," Avcı said.
Meanwhile, Ömer Kavili, another lawyer following the trial at İstanbul Courthouse, told Cihan that he had searched for other prosecutors on night duty but none of them were present in their offices. "We are going to press charges about this. We are here to identify the setbacks caused to our colleagues in the implementation of the release order. As the İstanbul Bar Association, we'll continue to defend the law and we won't compromise," Kavili added.
Kemal Şimşek, one of the lawyers of the police officers who were arrested and held in Silivri Prison on trumped-up charges of illegal wiretapping and spying in a government-orchestrated investigation that began on July 22, 2014, also announced on Twitter that the same court ruled for the release of the jailed police officers.
More than 115 police officers and senior police chiefs were detained in the early hours of July 22 last year on charges of espionage and illegal wiretapping in two separate probes, and they were later arrested. However, the arrests, dubbed the “parallel state operation,” are widely seen as an act of revenge by the government for a corruption investigation that became public on Dec. 17, 2013, that targeted the sons of now-former ministers, bureaucrats and businessmen close to the government.
The term “parallel state” was coined by then-Prime Minister Recep Tayyip Erdoğan to refer to sympathizers of the faith-based Hizmet movement, whom he sees as responsible for the Dec. 17 graft probe. The lawyers for the officers have asked the court scores of times for the release of the police officers, but their applications have been rejected each time.
Tensions ran high outside İstanbul Courthouse after defense lawyers were given the court ruling to be delivered to the Silivri Prison management. Police took strict security measures as the lawyers were leaving the courthouse. A reporter from Samanyolu TV was briefly detained by the police while some defense lawyers were beaten.
A copy of the İstanbul 32nd Court of First Instance order was also shared on Twitter by the lawyers. The court said in its reasoning for the ruling that the suspects should be released as there is no concrete evidence that would necessitate their arrest, and they are not likely to flee the country as they did not attempt to take such an action before and that they surrendered police themselves.
The judge said a series of human rights violations that were made during the detention of Karaca is the basis for the ruling to release the journalist.
Karaca was arrested following a government crackdown which targeted 27 people, including scriptwriters and a graphic designer, Karaca himself and three former police chiefs, who 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 evidence of his alleged terrorist activities remain unanswered.
The only “evidence” supporting Karaca's arrest is a fictional TV series that was 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, after which its leaders received prison time. The prosecutor argues that 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.
In response to claims of attempts to block the enforcement of the judgment, lawyers and legal experts said it is impossible to block the implementation of a court ruling once it is handed down. Former public prosecutor Gültekin Avcı, who is among Karaca's lawyers, said, nobody can prevent a ruling from being enforced. He said it does not matter whether a court ruling appears at UYAP or not as it would be enough for the ruling to be submitted to the prison management personally.
Lawyer Ömer Turanlı, who is among the lawyers representing the jailed police officers, said any attempt to block the implementation of the court ruling constitutes a crime.
“Anyone who delays or blocks this ruling's enforcement commits a crime,” independent İzmir deputy Ertuğrul Günay, also a jurist, tweeted on Saturday night.
The court's ruling on release of journalist Karaca and 63 police officers is as follows:
İstanbul 32nd Criminal Court of First Instance
Miscellaneous Case Number: 2015/143
Judge: Mustafa Başer 40054
Court clerk: Arzu Tuna 99575
Office of the İstanbul Chief Public Prosecutor investigation number: 2014/69722
İstanbul 29th Criminal Court of First Instance tasked our court regarding Articles 26, 27, 28 of the Code of Criminal Procedure (CMUK) to give a decision regarding the replacement of judges in the penal courts of peace and releasing of some of the arrested suspects. That decision is based on the demand and petition of:
Lawyers Fatih Şahinler, Suphi Bal, İncekara, Osman Yalçın, Deniz Atmaca and Hüseyin Ataol.
Our court investigated the demands and gives the following decision:
First, it is necessary to argue whether our court has the authority to order the suspects' release and evaluate the replacement of judges in the penal courts of peace. Law No. 6545 provides that penal courts of peace judges can make decisions to arrest or release a suspect during an investigation, but does not give any authority to those judges to evaluate a request for a replacement of judges at the penal courts of peace. According to the existing law, general criminal courts are authorized to evaluate a request for the replacement of judges in the penal courts of peace.
Before that application, the lawyers applied to İstanbul 1st, 2nd, 3rd and 6th penal courts of peace. The judges at the penal courts of peace determined that although Law No. 6545 does not include the article regarding the replacement of judges in the penal courts of peace, we can fill this blank by applying general rules on the replacement of judges in the penal courts of peace.
Regarding this thought, they accepted these demands as a general appeal of their basic decision and rejected the lawyers' petitions. However, a judge at Erzurum Criminal Court of First Instance determined that the penal courts of peace judges cannot evaluate a request for the replacement of judges in the penal courts of peace and the judge should send the petition to the Criminal Court of First Instance according to Articles 26, 27, 28 of the CMUK. As İstanbul 29th Criminal Court of First Instance's decision is the final decision and there is no opportunity to appeal it according to Article 28 of the CMUK. Therefore, our court must decide on the request for the replacement of judges in the penal courts of peace and whether some of the arrested suspects should be released immediately.
Our court requested prosecution files from the Office of the İstanbul Chief Public Prosecutor to reach a decision about the demands, but they did not send the files. Also, the Office of İstanbul Chief Public Prosecutor did not give any opinion or thoughts about the lawyers' demands. The lawyers for the suspects presented the copied files to our courts. Even though the prosecution service did not give any opinion, our court must give a decision and according to a decision of the General Criminal Chamber of Supreme Court of Appeals 2010/162-179, the court must evaluate demands for release because that demand is not about the essence of the file. That is why our court believes a decision on the lawyers' demands must be made.
The lawyers of the suspects state in their petition that the judges in the penal courts of peace rejected their demands to release the suspects using copied statements, made unjustified decisions and violated articles of the European Convention on Human Rights (ECHR) and Article 13 of the Turkish Constitution. As a result, they demanded that their clients be released.
Article 90 of the CMUK states that generally the maximum time for custody is 24 hours and can be extended to three days only in limited circumstances with a total allowable period of custody of four days. If at the end of four days the court does not make a decision on whether charges are filed, the suspects must be released according to Article 91(5) of the CMUK. When we investigate the file contents, it is clearly understood that the suspects continued to be detained for far longer than four days and formal charges were not laid for a long time after four days. In the case of Zeynep Avcı v. Turkey at the European Court of Human Rights (ECtHR), it was stated that since the suspect was held in custody for 21 days, Article 5(1) of the ECHR had been violated. The decision to arrest suspects after the extended period of detention is capped by Article 91(5) of the CMUK.
In a book written by Prof. Dr. Osman Doğru and Dr. Atilla Nalbant (Volume 1), they note that it is illegal to arrest a suspect after the suspect has been held in custody beyond the maximum allowable period of detention. Even extended time spent in custody and the decision to arrest can be subtracted from the length of the sentence in the case of conviction, but it cannot be used as a defense of the decision to arrest.
According to Article 19 of the Constitution and Article 109 of the CMUK, arrested suspects have the right to demand to be tried in a reasonable time and demand release as well as to have the laws applied accurately.
The courts must state all legal facts, justifications and strong evidence in their decision to arrest. When we investigate the file contents, we could not find any facts or strong evidence in the files. We could not even find reasonable evidence to write the indictment and arrest the suspects according to Article 170 of the CMUK. Also, the judge that made the decision to arrest did not provide any further notes offering any evidence or facts in his arrest decision.
When a judge decides there is a strong possibility of the suspect fleeing, they must argue whether the condition of arrest regarding Article 100 of the CMUK exists. According to Article 100 of the CMUK, if there is a possibility of the suspect fleeing and strong evidence in the file, the judge can order their arrest. Concerning the decision of ECtHR, the sentencing time for that crime is not justification for arresting the suspect. And according to the ECtHR decision written in Neumeister's book, concerning the risk of suspects fleeing, the judge has to take into consideration the following facts: the suspect's personality and ethical values, their profession, residence, assets, connections in the country, having a real escape plan and the way they react to being arrested. In line with this decision, if the suspects are police officers, they have a stable residence, attended at the police station to give their statement without being requested to do so and had no plan to escape the country it is therefore clearly understood from the files that there can be no suspicion that the suspects intended to flee.
Which evidence could have been tampered with by the suspects was not shown in the decision to arrest or the decision to extend their detention. Because the suspects were accused of forging official documents and recording secret state information, all investigation documents are protected in the investigation case file. Therefore, they cannot make forged documents and there is no way to forge or access the documents.
After noting the conditions surrounding the arrest, it should be questioned why the judge did not consider the other measures including Article 100 of the CMUK in its decision before ordering the arrest. It is understood in the files that the judges that ordered the arrest and made the decision to extend the period of custody did not refer to the conditions of the arrest or present arguments on the laws that applied in this case because if they had done so they could not make a decision to detain suspects. The justifications for extending the period of custody have to be different from those of the initial decision to arrest and the judge must base their decision on new strong evidence and establish the balance between freedom and security in their judgment to order an arrest according to ECtHR case law. The ECtHR criticizes decisions to arrest that are based on the repetition of similar statements without any reasoning and do not make a consistent connection between a concrete case and evidence, and do not have adequate justification (Netellier page 51; the case of Yagci and Sargin v. Turkey page 52; Demirel page 58). As a result, the ECtHR has ruled that it is a violation of the ECHR if a decision to arrest does not have the above conditions.
It is clearly seen in the files that the decision to arrest does not abide by Constitutional Court rulings or the rules of the ECtHR, it has only the same repetitive language saying, “There is no change from the conditions or reasons of the arrest since the initial arrest.” It is also understood from evaluating the decisions that the judges did not question what evidence was discovered by the public prosecutor and why they had not prepared the indictment for the suspects. In addition, they did not take into consideration the possibility of the suspects being charged with different crimes.
When our court investigated all the file contents, the court did not see or understand any reason or evidence in line with the ECtHR or Constitutional Court decisions to extend the suspects' arrest. In addition, the court did not see any reason for extending the suspects' detention regarding the suspects' profession, personality and values, clean criminal record, assets, residence, family connections, attending at court without being requested to do so and not showing any bad reaction to the decision to arrest.
When our court takes the above-mentioned factors into consideration, it is has reached the legal and conscience judgment that all applicant suspects be released immediately.
Judgement
Suspect Ramazan Orkun Altınışık was released from the penal court of peace, judgment numbered 2014/42 regarding illegally recording a telephone conversation.
Suspect Şeref Bolat was released from the penal court of peace, judgment numbered 2014/42 regarding illegally recording a telephone conversation.
Suspect Selahattin Ergin was released from the penal court of peace, judgement numbered 2014/42 regarding illegally recording a telephone conversation and forging official documents.
Suspect Erkan Palas was released from the penal court of peace, judgment numbered 2014/42 regarding illegally recording a telephone conversation and forging official documents.
Suspect Fatih Kıncır was released from the penal court of peace, judgment numbered 2014/42 illegally recording a telephone conversation and forging official documents.
Suspect Mehmet Dilaver was released from the penal court of peace, judgment numbered 2014/42 regarding illegally recording a telephone conversation and forging official documents.
Suspect Tolga Güzeltaş was released from the penal court of peace, judgment numbered 2014/2699 regarding illegally recording a telephone conversation.
Suspect Muhammet Ali Iklı was released from the penal court of peace, judgment numbered 2014/52 regarding forging official documents.
Suspect Harun Aydın was released from the penal court of peace, judgment numbered 2014/52 regarding forging official documents.
Suspect Ali İhsan Tezcan was released from the penal court of peace, judgment numbered 2014/52 regarding forging official documents.
Suspect Hasan Hüseyin Danacı was released from the penal court of peace, judgment numbered 2014/52 regarding forging official documents.
Suspect Hayati Başdağ was released from the penal court of peace, judgment numbered 2014/52 regarding forging official documents.
Suspect Metin Canbay was released from the penal court of peace, judgment numbered 2014/52 regarding forging official documents.
Suspect Erol Demirhan was released from the penal court of peace, judgment numbered 2014/52 regarding forging official documents and forming a criminal organization.
Suspect Hikmet Kopar was released from the penal court of peace, judgment numbered 2014/52 regarding illegally recording a telephone conversation and forging official documents.
Suspect Mesut Yılmaz was released from the penal court of peace, judgment numbered 2014/42 regarding illegally recording a telephone conversation and forging official documents.
Suspect Ali Fuat Yılmazer was released from the penal court of peace, judgment numbered 2014/52 regarding forging official documents and forming a criminal organization.
Suspect Muhammed İkbal Kayaduman was released from the penal court of peace, judgment numbered 2014/52 regarding illegally recording a telephone conversation and forging official documents.
Suspect Abdulhalim Sönmez was released from the penal court of peace, judgment numbered 2014/42 regarding illegally recording a telephone conversation and forging official documents.
Were immediately released.
Write notification to Silivri Penientary authorities.
Give a copy of the decision to the suspects lawyers.
Send the decision to the Office of the İstanbul Chief Public Prosecutor to add the decision to the file and apply releasing judgments.
April 25, 2015
Judge: Mustafa Başer 40054
Court clerk: Arzu Tuna 99575
Published on Sunday's Zaman, 26 April 2015, Sunday
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