Former ECtHR judge Türmen: Journalist, police officers should have been released

This week's guest for Monday Talk has emphasized that the ruling Justice and Development Party's (AK Party) grip on the judiciary has become so obvious that the ruling party has its own rule of law. Otherwise, two judges who ruled for the release of journalist Hidayet Karaca and 63 police officers would not have been arrested; and the detainees would have been released immediately upon the decision of the court to free them.

“Turkey has a serious regime problem; it is not a democracy – you can probably call it ‘elected authoritarianism.' It is a majoritarian and hegemonic system,” said Rıza Türmen, a former judge of the European Court of Human Rights (ECtHR) and currently a Republican People's Party (CHP) İzmir deputy in Turkey's Parliament.

He added that the government's style of rule is incompatible with the ECtHR system: “Turkey has difficulties in trying to comply with the justice system of Europe in relation to other issues as well. For example, Turkey prevents freedom of assembly and demonstration; and requires mandatory religion classes, etc. Turkey has a big problem regarding the rule of law. Laws have been politically used. The ruling party has its own rule of law. This is typical of authoritarian regimes; they first create a judiciary dependent on the ruling party.”

Samanyolu Broadcasting Group President Hidayet Karaca and about 63 police officers have been held since December awaiting trial in relation to what President Recep Tayyip Erdoğan called an anti-terrorism investigation into attempts by his rivals to seize power.

Even though an İstanbul court ordered the release of Karaca and the police officers, a chief prosecutor refused to implement the law.

Türmen spoke to Today's Zaman, elaborating on the issue.

Can you tell us about the irregularities and/or unlawful practices that have emerged following the court's decision to release Karaca and 63 police officers?

There have been a series of events that can be qualified as unlawful. There are four issues involved. The first relates to which court is competent to decide on the request of disqualification of the judges [demanded by defendants] of the Magistrate Courts. The law is clear on this: Courts of First Instance are the competent courts to make such a decision. The Istanbul 29th Court of First Instance ruled for disqualification.

The second relates to which court is competent to review the lawfulness of detention and order release if detention is unlawful. The law is also clear on that. It is the Magistrate Courts that is authorized to review detention. The Court of First Instance has acted incorrectly by ordering the release of detainees.

The third is whether the prosecutor can refrain from executing the court order. The İstanbul Chief Public Prosecutor's Office claimed that the order of the İstanbul 32nd Court of First Instance to release them was null and void, as the court was not authorized to rule on the issue. The Istanbul 10th Magistrate Court also issued a verdict declaring that the İstanbul 29th Court of First Instance is not authorized to determine whether a special criminal judge can be replaced. However, following the decision of the court to release the suspects, public prosecutors refused to apply the court order even though the prosecutors do not have such authority. The court may have decided rightly or wrongly but first, the decision of the court should have been applied; if the decision of the court is to be challenged, there are ways to do it.

Prosecutors cannot simply refuse to implement the court order. What the prosecutor is doing is unacceptable. If the decision of the court is wrong, then there are institutions to review it such as the appeals court. Refusing to apply the court order is a violation of the principle of fair trial.

‘Arrest of judges unlawful'

On top of that, two judges were arrested after ruling for the release of Karaca and 63 police officials who had been in detention for four and a half months. How do you evaluate this development?

This is the fourth issue. There was an immediate, extraordinarily speedy investigation process of the judges who made the decision to release the suspects. The fact that investigators from the Supreme Board of Judges and Prosecutors (HSYK) requested the arrest of the judges without even hearing their defense statements is also unlawful. Then the judges were arrested. To arrest judges for their decisions is a gross violation of the independence of the judiciary and the principle of the rule of law. The judges are accused of being members of a “terrorist organization.” Now, if a judge orders their release, he will also be accused of being a member of the same “terrorist organization”!

The HSYK appointed new judges who ruled that the decisions of the former judges were null and void. This is unacceptable because those newly appointed judges have no such authority. What needed to be done at first was to apply the court order and release the suspects. At present, holding the suspects has no legal basis. There are several rulings of the European Court of Human Rights (ECtHR) in this regard, including Assanidze v. Georgia, Nikolov v. Bulgaria, Quinn v. France, Topaloğlu v. Turkey. In such cases, a national court ruled for the release of the suspects but the court's ruling was not applied. The ECtHR had ruled in this regard that keeping suspects after the courts' rulings violated a person's right to liberty. In the Quinn case, authorities delayed the release of suspects for 11 hours, and the ECtHR found them to be violating the suspects' right to liberty. Regarding the Topaloğlu case in Turkey -- in which a suspect was released three days after the court had made the decision to release him -- the ECtHR said the state needed to apply the national court decision to release the suspects immediately.

‘Magistrate courts not constitutional'

Many observers blame the new system of magistrate courts for these irregularities. Do you agree?

Yes, there is a structural problem regarding the establishment of magistrate courts (“sulh ceza hakimlikleri”) that was created with Law No. 6545, “The law amending the Turkish Criminal Code and other laws” adopted on June 18, 2014, with an omnibus law that was adopted in 2014. The creation of such special courts is incompatible with the principle of natural justice enshrined in Article 37 of the Constitution [which states: “no one shall be put to trial before a body other than the court he/she is legally subject to. No extraordinary judicial bodies shall be established that would lead to putting a person to trial before a body other than the court he/she is legally subject to.”]

These special magistrate courts have extensive powers to take all decisions related to the conduct of criminal investigations, such as detention, arrest, release and seizure of property. It is almost impossible to appeal their decisions because there is a closed-circuit system contrary to fair trial principles. Only another special magistrate court can review their decisions. As long as those magistrate courts exist, the chaotic judicial decisions will continue.

If this structural problem has been apparent to the observers and the opposition, what was done to prevent the law's passage?

In Parliament, CHP objected to this law and explained in detail the consequences that might follow. But the government did not listen to us, and since they have the parliamentary majority to change laws, the law was adopted. Subsequently, we applied to the Constitutional Court for their annulment.

If the new magistrate courts are against the Constitution, should not the Constitutional Court revoke them?

Yes, the creation of such special courts is not compatible with the principle of natural justice. The Constitutional Court should revoke the special criminal courts.

But it did not. Do you think the Constitutional Court is still independent?

It should be. The recent speech made by Zühtü Arslan, the president of the Constitutional Court, was promising, but we will have to wait to see the court's actions.

‘Ruling party has its own rules of law'

Sixty-four suspects in the case will probably apply to the ECtHR but the top government officials clearly show that they do not care about the implementation of the ECtHR decisions.

The government has to comply with the ECtHR decisions. They have a binding effect. However, the government's style of ruling is not compatible with the ECtHR system. Turkey has difficulties in trying to comply with the justice system of Europe in relation to other issues as well; for example, Turkey prevents freedom of assembly and demonstration, requires mandatory religion class, etc. Turkey has a big problem regarding the rule of law. Laws have been used politically. The ruling party has its own rules of law. This is typical of authoritarian regimes. They first create a judiciary dependent on the ruling party, then the ruling government manipulates the judiciary.

What if the government does not comply with the ECtHR? Are there sanctions?

Turkey has to implement the ECtHR's rulings. If Turkey does not implement the ECtHR's rulings, the Council of Europe (CoE) Committee of Ministers will keep this issue continuously on its agenda and increase pressure on Turkey until Ankara implements the rulings.
‘President acts against Constitution'

Opposition parties and other observers point out that President Recep Tayyip Erdoğan is the top official who violates the Constitution by not being impartial. What can be done to stop this course?

I don't think the president is concerned about being impartial. He runs a campaign for his political party, the Justice and Development Party (AK Party). This is against the Constitution, which says the president should be impartial, above political parties and represent all people, not just AK Party voters. Clearly, the presidency itself has become unconstitutional. AK Party officials have a weird logic. They say that Turkey's parliamentary system ended with the election of the president by the public and therefore Turkey has to adopt a presidential system. That means correcting a wrong with another wrongful action.

But the current Constitution is still in place and valid. What sanctions can be applied if the government and the president are not in compliance?

Yes, those actions are against the Constitution but according to the Turkish Constitution, the president can be put on trial only in the case of treason. Turkey has a serious regime problem. It is not a democracy -- you can probably call it an “elected authoritarianism.” It is a majoritarian and hegemonic system.

‘If AK Party remains in power, Turkey will quickly move toward chaos'

How can this justice system, which serves the interests of the governing party, be changed?

If people want a peaceful country, they need a democratic regime. The June 7 parliamentary election will give people a chance to make their choices. The Justice and Development Party (AK Party) regime has almost come to the end of the road. If they remain in power, Turkey will quickly move toward chaos. The government's new internal security package is a tool to do that -- it is designed to transform Turkey into a police state and undermine social peace.

It is nice to have hopes regarding the upcoming elections. In the meantime, people's lives have been changed, with some people still in prison because of politically motivated cases against them. Is there nothing that can be done to obtain the rule of law in Turkey?

Politics is not confined to Parliament; it can be in the public sphere too. That's why the government banned May 1 demonstrations in Taksim Square; the government is trying to prevent people from assembling because in such assemblies, opposition to the government can be voiced more powerfully. Not having May 1 demonstrations in Taksim has no basis in law.

PROFILE: Dr. Rıza Türmen is a former judge of the European Court of Human Rights (ECtHR) and a current deputy from İzmir in the Turkish Parliament with the Republican People's Party (CHP). He graduated from İstanbul University Law Faculty in 1964 and completed his legal training as part of the İstanbul Bar Association. He received a master's degree in law from McGill University, Montreal, and a doctoral degree in international relations from the Political Science Faculty of Ankara. In 1966, he joined the Ministry of Foreign Affairs. In 1985, he was appointed Turkey's ambassador to Singapore. Between 1989 and1994, he served in the Ministry of Foreign Affairs as the director general in charge of the Council of Europe (CoE), human rights, the Organization of Security and Cooperation in Europe (OSCE) and the United Nations. He was the head of the Turkish delegation to the World Conference on Human Rights in 1993. In 1994, he became Turkey's ambassador to Switzerland and in 1996, he was appointed as Turkey's ambassador to the CoE. He was a judge at the ECtHR from 1998 until 2008. In 2008-2011, he was a columnist at the Milliyet daily newspaper. He has several received several awards for his distinguished service.

Published on Sunday's Zaman, 03 May 2015, Sunday